‘Sovereignty’ and its Relevance to Treaty-Making Between

‘Sovereignty’ and its Relevanceto Treaty-Making Between Indigenous Peoples and AustralianGovernmentsSEAN BRENNAN,* BRENDA GUNN** AND GEORGE WILLIAMS***

Abstract

The idea of a treaty or treaties between Indigenous peoples and Australiangovernments has long been a subject of debate. One argument that often arises isthe idea that such agreements are not achievable because they are inconsistentwith Australian ‘sovereignty’. This article explores whether sovereignty is indeeda roadblock to modern treaty-making. It analyses what the term means as well asuses of it in Australia by Indigenous peoples, governments and the courts and howit is applied in other nations. The article concludes, after analysing some commonobjections, that as a matter of public law the concept of sovereignty need not bean impediment to treaty-making in Australia.

* Director, Treaty Project, Gilbert + Tobin Centre of Public Law and Lecturer, Faculty of Law,University of New South Wales. This project is supported by the Australian Research Council.

** Intern, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales;Student, University of Toronto Faculty of Law.

*** Anthony Mason Professor and Director, Gilbert + Tobin Centre of Public Law, Faculty of Law,University of New South Wales; Barrister, New South Wales Bar. This paper benefits from thecomments of the participants in the Workshop on Sovereignty held at the Faculty of Law,University of New South Wales, on 13 June 2003. The authors also acknowledge Arthur Glass,Colin Hughes, Gig Moon, Thomas Poole, George Villaflor and the two anonymous referees whomade comments on an earlier draft, David Yarrow for his particularly generous advice andMelanie Schwartz for her research assistance.

308 SYDNEY LAW REVIEW [VOL 26:307

1. Introduction

‘We recognise that this land and its waters were settledas colonies without treaty or consent.’

Prime Minister John Howard, 11 May 20001

‘A nation … does not make a treaty with itself.’Prime Minister John Howard, 29 May 20002

The first statement by Prime Minister John Howard is a matter of fact. From thatfact flows a sense of grievance, felt by many Indigenous people and shared bymany other Australians, that ultimate political and legal authority — or‘sovereignty’ — was never properly secured by the Crown over the Australianlandmass. The second statement is an assertion. It suggests that it is impossible touse a treaty to remedy the way that the continent was settled and the Australiannation constructed. The difficulty, it has been argued, is that ‘implicit in the natureof a treaty is recognition of another sovereignty, a nation within Australia’.3Whether Indigenous people have the power and authority as a matter of law tonegotiate and enter into such agreements lies at the heart of the contemporarytreaty debate in Australia. This is a difficult question because the concept ofsovereignty is elusive and there is no constitutional recognition of Indigenouspeople or their place within the Australian nation.4 Using Australian andcomparative public law principles, this paper explores whether ‘sovereignty’ isindeed a roadblock to a modern-day treaty or treaties5 between Indigenous peoplesand the wider Australian community.6

1 John Howard, Reconciliation Documents (Media Release, 11 May 2000): <www.pm.gov.au/news/media_releases/2000/reconciliation1105.htm> (23 December 2003). Howard respondedto the Council for Aboriginal Reconciliation’s Australian Declaration Towards Reconciliationby saying there were several areas of disagreement which prevented the Government offeringits full support for the document. ‘For the information of the public’ he attached a version of thedocument ‘to which the government would have given its full support’.

2 John Laws, Interview with John Howard, Prime Minister of Australia (Sydney, 29 May 2000):<www.pm.gov.au/news/interviews/2000/laws2905.htm> (23 December 2003). David Yarrowpointed out to the authors that Prime Minister Howard’s statement bears a striking similarity toan assertion made by former Canadian Prime Minister, Pierre Trudeau, at the time his newlyelected government released its 1969 White Paper on Aboriginal policy: ‘We will recognisetreaty rights. We will recognise forms of contract which have been made with the Indian peopleby the Crown and we will try to bring justice in that area and this will mean that perhaps thetreaties shouldn’t go on forever. It’s inconceivable, I think, that in a given society one section ofthe society have a treaty with the other section of society. We must all be equal under the lawsand we must not sign treaties amongst ourselves’: Peter Cumming & Neil Mickenberg (eds),Native Rights in Canada (2nd ed, 1972) at 331.

3 Robert French, ‘The Constitution and the People’ in Robert French, Geoffrey Lindell & CherylSaunders (eds), Reflections on the Australian Constitution (2003) 60 at 78.

4 See George Williams, ‘Race and the Australian Constitution: From Federation toReconciliation’ (2000) 38 Osgoode Hall Law Journal 643.

5 Australia is the only Commonwealth nation that does not have a treaty with its Indigenouspeoples: Final Report of the Council for Aboriginal Reconciliation to the Prime Minister andthe Commonwealth Parliament (Canberra: AusInfo 2000) 6.

2004] ‘SOVEREIGNTY’ AND ITS RELEVANCE TO TREATY-MAKING 309

We begin by examining the origins of the term ‘sovereignty’ and the variousmeanings it has acquired over past centuries. From this diversity of meanings, weidentify key themes relevant to the current Australian debate about treaty-making.We explore how the concept of sovereignty has been used in Australia byIndigenous peoples, government and the courts. We then look at how it has beenapplied by governments, courts and Indigenous people in other comparableEnglish-speaking countries where the relationship between Indigenous peoplesand the settler state is an ongoing source of political and legal concern. Finally, wediscuss sovereignty within the context of some public law and policy objectionsthat have been made to negotiating a treaty settlement in Australia.

In this article, we find that debates about sovereignty are important — they dealwith the most fundamental questions of legitimate power and authority — but theydo not appear to be inherently unresolvable.7 After examining the differentmeanings of the term and the different ways that Australia and other countries havewrestled with its dilemmas, we conclude that as a matter of public law the conceptof sovereignty itself poses no roadblock to moving forward with a process oftreaty-making. In discussing the possibility of modern treaty-making in Australiawe take a broad view of what a ‘treaty’ or treaty-like agreement might be.8Essentially we apply the term to comprehensive agreements reached betweenIndigenous peoples and governments that have a political or governmental

6 See also on sovereignty in this context, Michael Dodson, ‘Sovereignty’ (2002) 4 Balayi: CultureLaw and Colonisation 13; William Jonas, ‘Recognising Aboriginal Sovereignty — Implicationsfor the Treaty Process’ (Paper presented at the ATSIC National Treaty Conference, Canberra,27 August 2002) 6: <www.treatynow.org/docs/jonas.doc> (23 December 2003); MarciaLangton, ‘The Nations of Australia’, Alfred Deakin Lecture, 21 June 2001: <www.abc.net.au/rn/deakin/stories/s300007.htm> (24 December 2003); Lisa Strelein, ‘Missed Meanings: TheLanguage of Sovereignty in the Treaty Debate’ (2002–2003) 20 Arena Journal 83. This articledoes not attempt to tackle the significance and status of treaties made between Indigenouspeoples and governments under international law.

7 In discussing Neil MacCormick’s recent book Questioning Sovereignty: Law, State and Nationin the European Commonwealth (1999) in the context of the ongoing controversy over nationalsovereignty within the European Union, Peter Oliver says that while a pluralistic notion ofsovereignty sounds like a recipe for confusion ‘the rush for certainty is not always warranted’.Later he says it is MacCormick’s ‘distinctive contribution to point out that this question, thesovereignty question, does not need a definitive answer’. Peter C Oliver, ‘Sovereignty in theTwenty-First Century’ (2003) 14 KCLJ 137 at 171. See also the conclusion drawn by theCanadian Royal Commission on Aboriginal Peoples on the issue of sovereignty, text below atn124.

8 See the discussion of what the term ‘treaty’ might encompass in Sean Brennan, Why ‘Treaty’and Why This Project?, Discussion Paper No. 1, Treaty Project, Gilbert + Tobin Centre of PublicLaw, January 2003: <http://www.gtcentre.unsw.edu.au/publications.asp#Treaty%20Project%20Discussion%20Papers> (30 June 2004). This Paper suggests that the idea of a treaty conveyscertain ideas in terms of premise, process and outcome. The premise or starting point isacknowledgment, a mutual recognition of negotiating authority and also of the past exclusion ofIndigenous people from the processes by which the Australian nation was constructed. The(default) process in a treaty relationship is that of negotiation as the primary way of doingbusiness, ahead of litigation, legislation and administration, which have been more typicalmethods by which governments have dealt with Indigenous issues. The outcomes which treatyadvocates have spoken of might be summarised as rights and opportunities.


character, that involve mutual recognition of the respective jurisdiction each sideexercises in entering into the agreement and that have a binding legal effect.9Whether or not such a process is desirable, and what any treaty might contain, areseparate questions of politics and policy not addressed in this article.

2. The Uses of SovereigntyIn references made to ‘sovereignty’, the same themes emerge again and again: theconcept is important, but also elusive and very much dependent on its context.10

As one study has recently suggested:

The uninterrupted quest for a so-called ‘proper’ or ‘adequate’ definition of‘sovereignty’, in both its internal and international ramifications, bears witness tothe unfading materiality of this word for human society…. However, far frombeing semantically crystallised, this word has in fact never stopped changing.11

Although he did not invent the concept, French lawyer, philosopher and writerJean Bodin is widely seen as the ‘father’ of sovereignty. A recent investigation ofhis work suggests he propounded the concept to meet a particular purpose at aparticular time. Sixteenth Century France was wracked by violence and war. With

9 We note that in his landmark study as a Special Rapporteur for the UN’s Commission on HumanRights, Miguel Alfonso Martinez took a similarly broad approach to the characterisation of suchagreements. At one point he referred to them as ‘formal and consensual bilateral juridicalinstruments’ (at [82]). More generally he said ‘the decision of the parties to a legal instrumentto designate it as an “agreement” does not necessarily mean that its legal nature differs in anyway from those formally denominated as “treaties”‘ (at [40]) and that ‘one should avoid makingoneself a prisoner of existing terminology’ (at [53]). He went on to say that ‘a narrow definitionof ‘a treaty’ and ‘treaty-making’ would hinder or pre-empt any innovative thinking in the field.Yet it is precisely innovative thinking that is needed to solve the predicament in which manyindigenous peoples find themselves at present’. Miguel Alfonso Martinez, ‘Study on Treaties,Agreements and Other Constructive Arrangements Between States and IndigenousPopulations’, Final Report, E/CN.4/Sub.2/1999/20, 22 June 1999: <http://ods-dds-ny.un.org/doc/UNDOC/GEN/G99/137/73/PDF/G9913773.pdf?OpenElement> (30 June 2004).

10 There is a wealth of literature discussing the discriminatory assumptions embedded in theconclusive presumption that Indigenous and non-state societies lacked sovereignty. This bodyof literature is not dealt with in the present article, but see, eg, Robert Williams, The AmericanIndian in Western Legal Thought: The Discourses of Conquest (1990). Kent McNeil has alsonoted that sovereignty is ‘a European concept, arising out of the development of the nation-state.So care needs to be taken in applying the concept in other parts of the world, where societieswere not necessarily organized on the nation-state model, and where an equivalent conceptionof sovereignty may not have existed in the minds of the people’. Kent McNeil, ‘Sovereignty onthe Northern Plains: Indian, European, American and Canadian Claims’ (2000) 39 Journal ofthe West 10 at 11.

11 Stéphane Beaulac, ‘The Social Power of Bodin’s ‘Sovereignty’ and International Law’ (2003)4 Melbourne Journal of International Law 1 at 24–25. Marcia Langton has also dealt with thisissue recently. She notes Stephen Krasner’s observation that ‘since Jean Bodin and ThomasHobbes “first elaborated the notion sovereignty in the 16th and 17th centuries”, it has alwaysbeen malleable in practice’. Marcia Langton, ‘Unsettling Sovereignties’ in Marcia Langton,Maureen Tehan, Lisa Palmer & Kathryn Shain (eds), Honour Among Nations? Treaties andAgreements with Indigenous People (2004) 31.


authority collapsing, Bodin wanted to save the monarchy: ‘The end he sought wasthe establishment of a coherent system of political organisation; the means hepromoted to reach this objective was the concentration of supreme power in as fewhands as possible’.12 This was sovereignty in its original form: that is, legal andpolitical authority constructed to be absolute and monolithic as a bulwark againstsocial chaos. The idea of sovereignty has been applied many times since, againfrequently with a political or rhetorical purpose in mind. Over centuriessovereignty has acquired multiple meanings, few of which now resemble Bodin’sconcept of a single omnipotent king at the top of a pyramid of power.

At its most general, sovereignty is about the power and authority to govern. Onthat much, at least, there is a rough consensus amongst those who seek to definethe term. Beyond that, context becomes important and different interpretationsemerge. This is true even according to a range of dictionaries and otherauthoritative reference works. The Macquarie Dictionary13 defines ‘sovereignty’ as:1. the quality or state of being sovereign2. the status, dominion, power, or authority of a sovereign3. supreme and independent power or authority in government as possessed

or claimed by a state or community4. a sovereign state, community, or political unit.

Other specialist dictionaries and reference books provide slightly differentmeanings. The Butterworths Australian Legal Dictionary states: ‘Sovereignty isan attribute of statehood from which all political powers emanate…. Howeversovereignty is rarely absolute; it is generally limited by duties owed to theinternational community under international law’.14 According to theConstitutional Law Dictionary: ‘Sovereignty is the power by which a state makesand implements its laws, imposes taxes, and conducts its external relations…. Thenotion of sovereignty was countered or altered in some respects by the concept ofpopular sovereignty, which retains for the governed ultimate control in a politicalsense’.15 The Dictionary of International & Comparative Law defines‘sovereignty’ as: ‘the ability of a state to act without external controls on theconduct of its affairs’.16 In A Dictionary of Modern Politics, ‘sovereignty’ isdefined as ‘the right to own and control some area of the world ... [It] depends onthe idea of independent rule by someone over somewhere ... [It] can, at the sametime, be used inside one country. One can talk about the sovereignty of thepeople’.17 A leading nineteenth century text on international law contained thefollowing, more nuanced definition:

12 Id at 22.13 Macquarie Dictionary (3rd ed, 1997) at 2028.14 Butterworths Australian Legal Dictionary (1997) at 1094. 15 Ralph Chandler (ed), The Constitutional Law Dictionary (1987) at 654. 16 Dictionary of International and Comparative Law (3rd ed, 2003). 17 David Robertson, A Dictionary of Modern Politics (1985) at 305.


Sovereignty is the supreme power by which any State is governed. This supremepower may be exercised either internally or externally. Internal sovereignty is thatwhich is inherent in the people of any State, or vested in its ruler, by its municipalconstitution or fundamental laws. This is the object of what has been calledinternal public laws… but which may more properly be termed constitutional law.External sovereignty consists in the independence of one political society, inrespect to all other political societies. It is by the exercise of this branch ofsovereignty that the international relations of one political society are maintained,in peace and in war, with all other political societies. The law by which it isregulated has, therefore, been called external public law,… but may moreproperly be termed international law.18

From such definitional diversity, four key themes emerge. The first is adistinction between external and internal sovereignty. Roughly, this parallels thedifference between foreign affairs and domestic politics, between international lawand constitutional law. External sovereignty is about who has the power on behalfof the nation to deal externally with other nation-states. Internal sovereignty looksat how and where power is distributed within territorial boundaries, such asthrough a federal system or according to the separation of powers betweendifferent arms of government. The second distinction is between definitions ofsovereignty that focus on the power of institutions, and those that focus on thepower of the people. A third distinction is closely related to the second. It contraststhe formal view of sovereignty, which emphasises legal authority,19 from the morefluid political understanding of the term. Fourth, there has been an evolution inmeaning away from the view of Bodin (and of Thomas Hobbes in his Leviathanwhich was first published in 1651) — that a sovereign has absolute, monopolisticand irrevocable power — to a more qualified understanding of the term. Under thismodern ‘realist’ conception, sovereignty is divisible and capable of being sharedor pooled across different entities or locations.20 Aspects of each of these themescan be seen in the legal and rhetorical debates that surround the treaty-makingprocess, and the idea of Indigenous sovereignty, in Australia and other like nations.

18 Henry Wheaton, Elements of International Law (1878) at 28–29, quoted in New South Wales vCommonwealth (1975) 135 CLR 337 at 376 (McTiernan J).

19 Albert Dicey wrote a highly influential analysis of the English Constitution at the end of the 19th

century and said that the ‘sovereignty of Parliament is (from a legal point of view) the dominantcharacteristic of our political institutions’. He defined Parliamentary sovereignty by saying thatunder the English Constitution Parliament has ‘the right to make or unmake any law whatever;and further, that no person or body is recognised by the law of England as having a right tooverride or set aside the legislation of Parliament’. Albert Dicey, Introduction to the Study of theLaw of the Constitution (10th ed, 1962) at 39–40. For an interesting discussion of this traditionalview of parliamentary sovereignty, Jeffrey Goldsworthy’s recent book which championed it andNeil MacCormick’s book which seeks to break from it in favour of a more ‘diffusionist’perspective, see Peter C Oliver, ‘Sovereignty in the Twenty-First Century’ (2003) 14 KCLJ 137.


3. Indigenous Sovereignty in Australia

A. Indigenous Uses of SovereigntyThere has always been a range of views and voices on sovereignty withinAboriginal and Torres Strait Islander communities in Australia. The decision bythe High Court in Mabo v Queensland (No 2)21 to recognise land rights that derivefrom traditional law and custom has given additional impetus to this debate. Weseek here to identify some recurrent themes in the diversity of Indigenous viewsexpressed about the notion of sovereignty.

Indigenous people often say that they were sovereign before Australia wascolonised, that their sovereignty was never extinguished and thus it remains intacttoday. This view is articulated, for example, by Michael Mansell:

Aboriginal sovereignty does exist. Before whites invaded Australia, Aborigineswere the sole and undisputed sovereign authority. The invasion prevented thecontinuing exercise of sovereign authority by Aborigines. The invasion andsubsequent occupation has not destroyed the existence of Aboriginalsovereignty.22

The reason sovereignty is retained, on this argument, is that it was never validlyextinguished. In the eyes of many Indigenous people, the explanation for absoluteBritish control over the Australian landmass is deeply unconvincing. This causesthem to question the validity and legitimacy of non-Indigenous sovereignty orlegal authority. After examining the international law bases for the acquisition ofnew territory and assertion of sovereignty, Mick Dodson concluded that ‘thefoundations of the sovereignty of the Australian state remain a mystery’. Notingthat Mabo (No 2) recognises the ongoing operation of traditional law and custom,Dodson said that the ‘reconstruction of the settlement thesis by the High Court, in

20 Referring to economic deregulation in New Zealand which saw ‘much locally owned industrypass into foreign hands’, Stephen Turner said that this experience, common to many othercountries over the last two decades, has led to claims that full national sovereignty no longerexists, ‘that no political body can fully control economic operations in the physical space overwhich it presides’. Stephen Turner, ‘Sovereignty, or the Art of Being Native’ (2002) 51 CulturalCritique 74 at 79. See also a recent statement by the Australian Foreign Minister AlexanderDowner about overseas intervention by Australia. He told the National Press Club in an addresson 26 June 2003: ‘Sovereignty in our view is not absolute. Acting for the benefit of humanity ismore important’: <http://www.foreignminister.gov.au/speeches/2003/030626_unstableworld.html> (30 June 2004). Later in responding to a question he said ‘for people who think the onlything that matters is this 19th Century notion of sovereignties, the only thing that matters ininternational relations. – I always say, it’s not the only thing that matters. It’s important, but it’snot the only thing that matters’: <http://www.dfat.gov.au/media/transcripts/2003/030626_qanda.html> (30 June 2004).

21 (1992) 175 CLR 1.22 Michael Mansell, Aboriginal Provisional Government: Finding the Foundation For a Treaty

With the Indigenous Peoples of Australia (2002): <www.faira.org.au/issues/apg05.html> (23December 2003). See Henry Reynolds, Aboriginal Sovereignty: Reflections on Race, State andNation (1996).


order to accommodate Native Title fundamentally undermines it. The sovereignpillars of the Australian state are arguably, at the very least, a little legally shaky’.23

The thing designated as ‘sovereignty’ that many Indigenous people say theyhad and still retain is not an easy concept to grasp. It deals with authority at its mostfundamental level. Irene Watson says:

We were ‘sovereign’ peoples, and we practised our sovereignty differently fromEuropean nation states. Our obligations were not to some hierarchical god,represented by a monarch. Our obligations were to law and we were responsiblefor the maintenance of country for the benefit of future carers of law andcountry.24

For others, sovereignty describes their capacity to make decisions across the rangeof political, social and economic life:

Sovereignty can be demonstrated as Aboriginal people controlling all aspects oftheir lives and destiny. Sovereignty is independent action. It is Aborigines doingthings as Aboriginal people, controlling those aspects of our existence which areAboriginal. These include our culture, our economy, our social lives and ourindigenous political institutions.25

From these preliminary observations we can see that when Indigenous peopleadopt the word sovereignty to express their political claims it involves a deliberatechoice.26 The word is used to convey a sense of prior and fundamental authority,drawing attention to the widespread dissatisfaction with the orthodox explanationof British ‘settlement’. For many, it is a verbal approximation of an innate sense ofidentity and of legal and political justice. It has structural as well as rhetoricalresonance.

As we saw in the previous section of this article, however, sovereignty bringswith it multiple implications. It is a loaded term precisely because it deals withultimate authority and its use is often wedded to a strong rhetorical purpose. Byusing a concept borrowed from Western legal and political thought, Indigenousadvocates run the risk of their opponents selecting the most politically damaginginterpretation available, to invalidate all competing interpretations. All the nuancecan be lost.

23 Dodson, above n6 at 18. 24 Irene Watson, ‘Aboriginal Laws and the Sovereignty of Terra Nullius’ (2002) 1(2) Borderlands

e-journal at [49]: <www.borderlandsejournal.adelaide.edu.au/vol1no2_2002/watson_laws.html> (31 May 2003).

25 National Aboriginal and Islander Health Organisation, Sovereignty (1983)<www.kooriweb.org/foley/news/story8.html> (23 December 2003) quoted in Larissa Behrendt,Achieving Social Justice: Indigenous Rights and Australia’s Future (2003) at 100.

26 Dodson, above n6; William Jonas, ‘Recognising Aboriginal Sovereignty — Implications for theTreaty Process’ (Paper presented at the ATSIC National Treaty Conference, Canberra, 27August 2002) at 6: <www.treatynow.org/docs/jonas.doc> (23 December 2003); Lisa Strelein,‘Missed Meanings: The Language of Sovereignty in the Treaty Debate’(2002–2003) 20 ArenaJournal 83.


When hearing assertions of Indigenous sovereignty, it is important toremember that non-Indigenous people freely use the word sovereignty in differentways to describe different versions of political authority.27 For example, they maybe referring to the external sovereignty of the nation-state to deal with other nation-states on an equal footing under international law. Or they may be pointing to theinternal distribution of authority within the territorial boundaries of the nation-state. They may even be referring to the sovereignty of the people in a democracyto elect their government or change the Constitution by referendum.

Similarly, Indigenous people use the word sovereignty in different contexts toconvey different ideas. Some use it to engage directly with the idea of externalsovereignty, arguing for recognition as a separate and independent nation. In 1992,the Aboriginal Provisional Government proposed ‘a model for the AboriginalNation — a nation exercising total jurisdiction over its communities to theexclusion of all others. A nation whose land base is at least all crown lands, socalled. A nation able to raise its own economy and provide for its people’.28 InTreaty ’88, Kevin Gilbert also argued that Aboriginal people should sign a treatyas a fully sovereign nation.29

However, Larissa Behrendt has pointed out that for many

the recognition of sovereignty is a device by which other rights can be achieved.Rather than being the aim of political advocacy, it is a starting point forrecognition of rights and inclusion in democratic processes. It is seen as a footing,a recognition, from which to demand those rights and transference of power fromthe Australian state, not a footing from which to separate from it.30

This internal perspective on sovereignty seems compatible with much of thecurrent advocacy in Indigenous politics, using the language of ‘governance’ and‘jurisdiction’ as exercised by Indigenous ‘polities’.31 Notions of internalsovereignty also correspond, for many, with the long-term political campaign

27 See text accompanying nn10–20 above.28 Aboriginal Provisional Government, Intellectual Prisoners (1992) Foundation for Aboriginal

and Islander Research Action: <www.faira.org.au/issues/apg01.html#prisoners> (23 December2003).

29 Kevin Gilbert, ‘Aboriginal Sovereignty: Justice, the Law and Land’ (1998): <www.aiatsis.gov.au/lbry/dig_prgm/treaty/t88/m0066865_a/m0066865_p1_a.rtf> (31 May 2003).

30 Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (2003) at99.

31 See, for example, Marcia Langton & Lisa Palmer ‘Treaties, Agreement Making and theRecognition of Indigenous Customary Polities’ in Marcia Langton, Maureen Tehan, LisaPalmer & Kathryn Shain (eds), Honour Among Nations? Treaties and Agreements withIndigenous People (2004). See also the papers given at the Indigenous Governance Conference,Canberra, 3–5 April 2002: <www.reconciliationaustralia.org/graphics/info/publications/governance/speeches.html> (23 December 2003), and at the Building Effective IndigenousGovernance Conference, Jabiru, 4–7 November 2003: <www.nt.gov.au/cdsca/indigenous_conference/web/html/papers.html> (23 December 2003). See generally the HarvardProject on American Indian Economic Development Harvard Project: <www.ksg.harvard.edu/hpaied/> (23 December 2003).


waged by Indigenous peoples and their supporters for self-determination, anotherterm borrowed from international law and Western political thought.

Internationally, the Draft United Nations Declaration on the Rights ofIndigenous Peoples32 makes no reference to sovereignty, but Article 3 states that‘Indigenous peoples have the right of self-determination. By virtue of that rightthey freely determine their political status and freely pursue their economic, socialand cultural development.’ Writing soon after Mabo (No 2), Noel Pearson said hewas sceptical ‘whether the concept of sovereignty as understood in internationallaw is an appropriate expression’ and instead favoured the use of ‘self-determination’:

a concept of sovereignty inhered in Aboriginal groups prior to European invasioninsofar as people have concepts of having laws, land and institutions withoutinterference from outside of their society. This must be a necessary implication ofthe decision in Mabo against terra nullius…. Recognition of this ‘localindigenous sovereignty’ could exist internally within a nation-state, provided thatthe fullest rights of self-determination are accorded.33

Many Indigenous people also frame their claim to sovereignty in popular,rather than strictly institutional, terms. In this sense, sovereignty is seen assomething inherent. It is the basic power in the hands of Indigenous people, asindividuals and as groups, to determine their futures. As inherent sovereignty doesnot result from grant by the Australian Constitution or any other settler documentor institution, it does not require recognition by a government or court in order toactivate it. ‘It is about exercising autonomy, both at an individual level and as a“people”. On this view Indigenous people can assert sovereignty in their day-to-day actions: there is a personal aspect to sovereignty’.34 That account echoes the‘Cape York view’ of self-determination put forward by Richie Ah Mat:

self-determination is about practice, it is about actions, it is about what we dofrom day to day to make changes, it is about governance. It is about takingresponsibility for our problems and for our opportunities: because nobody elsewill take responsibility for our families, our children, our people. We have to doit ourselves.35

If we understand talk of sovereignty and self-determination to be about nuanceas well as deliberate rhetorical force, then we gain a different appreciation for thedebate. Indigenous assertions of sovereignty assume their place in the ongoingframing and revision of the political settlement in Australia.36 A range of

32 UN doc. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56.33 Noel Pearson, ‘Reconciliation: To Be or Not to Be: Separate Aboriginal Nationhood or

Aboriginal Self-Determination and Self-Government Within the Australian Nation?’ (1993)3(61) ALB 14 at 15.

34 Behrendt, above n30 at 101.35 Richard Ah Mat, ‘The Cape York View’, paper presented at the Treaty Conference, Murdoch

University, Perth, 27 June 2002: <www.treaty.murdoch.edu.au/Conference%20Papers/ah%20mat%20speech.htm> (23 December 2003).


Indigenous views exist as the preceding paragraphs reveal. Some Indigenouspeople seek to challenge the Australian government’s authority in the externalsense of the word sovereignty. But it is equally important to recognise that manyothers adopt an internal perspective. These advocates seek to re-negotiate the placeof Indigenous peoples within the Australian nation-state, based on their inherentrights and their identity as the first peoples of this continent. This vision of anAustralia where, in practical terms, sovereignty is shared or ‘pooled’ is consistentwith the way the concept has evolved in Western thought. Sovereignty canencompass the role of people as well as institutions, it has a political as well as alegal significance and it is far more common to have qualified power than the ruleof an absolute and monolithic sovereign.

B. The Commonwealth Government and Indigenous SovereigntyThe Howard Government does not generally engage with the language ofIndigenous sovereignty. However, its position on the use of treaties betweenIndigenous peoples and the wider Australian community is clear. The governmentis not willing to negotiate or to enter into such agreements. This position was statedduring several interviews with Prime Minister Howard on 29 May 2000, the dayafter a quarter of a million people took part in the ‘People’s Walk forReconciliation’ across the Sydney Harbour Bridge (hundreds of thousands morepeople joined bridge walks and related events in cities and towns aroundAustralia).37

Although the precise wording varied, the Prime Minister’s position remainedconstant: a country does not negotiate a treaty with itself. For example, in hisinterview with John Laws, the Prime Minister said: ‘I’ll try and reach agreementbut a nation, an undivided united nation does not make a treaty with itself’.38

Similarly, in his interview with Alan Jones, he stated: ‘I mean nations maketreaties, not parts of nations with each other’.39 And finally, in his interview on the7:30 Report, Howard stated: ‘Countries don’t make treaties with themselves, theymake treaties with other nations and the very notion of a treaty in this contextconjures up the idea that we are two separate nations’.40 Although the PrimeMinister did not explicitly state that Indigenous people do not possess a form of

36 As Langton & Palmer put it recently, ‘Even if, as [Henry] Reynolds argues, there is a cleardistinction to be made between the states and nations, or even if national sovereignty is anaccretive and divisible bundle of things, the question remains: what of Aboriginal customaryauthority and forms of governance, and the modern-day adaptations of those traditions andcustoms in new political formations? How are they expressed and how do they mediate betweenthe state and indigenous jurisdictions?’ Langton & Palmer, above n31 at 36.

37 Council for Aboriginal Reconciliation, Reconciliation: Australia’s Challenge: Final Report ofthe Council for Aboriginal Reconciliation to the Prime Minister and the CommonwealthParliament (Canberra, 2000) at 60.

38 John Laws, Interview with John Howard, Prime Minister of Australia (Sydney, 29 May 2000):<www.pm.gov.au/news/interviews/2000/laws2905.htm> (23 December 2003).

39 Alan Jones, Interview with John Howard, Prime Minister of Australia (Sydney, 29 May 2000):<www.pm.gov.au/news/interviews/2000/laws2905.htm> (23 December 2003).

40 Transcript of the Prime Minister The Hon John Howard Interview with Tim Lester, 7.30 Report.29 May 2000: <www.pm.gov.au/news/interviews/2000/7302905.htm> (19 December 2003).


sovereignty, his statements are consistent with an absolute view of sovereigntybased upon its external aspect. By focussing only on this conception ofsovereignty, Prime Minister Howard denies any other form of jurisdiction in thehands of Indigenous people that might authorise the negotiation of treaty-likeinstruments.

Rather than mentioning any form of Indigenous sovereignty, theCommonwealth Government prefers to speak of Indigenous people being ‘equal’members of the Australian nation. For example, the Executive Summary of theCommonwealth Government Response to the Final Report of the Council forAboriginal Reconciliation41 speaks of ‘a sincere desire to see Indigenous peoplenot just treated as equals, but to experience equity in all facets of Australian life’.This would require recognition that Indigenous people, like all other Australians,share in whatever form of sovereignty is said to underpin the Australian nation.However, this approach does not necessarily recognise any other distinct form ofauthority continuing to inhere in Indigenous peoples as the first peoples of thenation.42

Despite its position that Indigenous people should be seen as ‘equal’ to non-Indigenous Australians, the Government does acknowledge the ‘special’ place ofIndigenous people within Australian society. The Executive Summary states: ‘As anation, we recognise and celebrate Indigenous people’s special place as the firstAustralians’.43 Because of their ‘special’ status, the government does recognisethe need for some consultation with Indigenous communities: ‘if our policies areto have traction, they must be designed and delivered through genuine partnershipof shared responsibility between all governments and Indigenous people’.44 Whilethe Government has indicated that one of its priorities is ‘increasing opportunitiesfor local and regional decision making by Indigenous people’,45 it has steeredaway from using terms such as sovereignty and self-determination, preferringterms such as ‘self-management’ and ‘self-reliance’.46 Recognising the ‘special’

41 Executive Summary of the Commonwealth Government Response to the Council for AboriginalReconciliation Final Report — Reconciliation: Australia’s Challenge (September 2002) at 1.

42 Other governments have taken a different approach to Indigenous issues. On the Stategovernment level see for example Western Australia, Statement of Commitment to a New andJust Relationship Between The Government of Western Australia and Aboriginal WesternAustralians (10 October 2001): <http://www.dia.wa.gov.au/Policies/StateStrategy/StatementOfCommitment.aspx> (4 June 2004) which, amongst other things includes thefollowing statement: ‘Aboriginal people have continuing rights and responsibilities as the firstpeople of Western Australia, including traditional ownership and connection to land and waters.These rights should be respected and accommodated within the legal, political and economicsystem that has developed and evolved in Western Australia since 1829’. For a differentapproach at Federal level see for example the speech of then Prime Minister of Australia, PaulKeating, at Redfern Park in Sydney on 10 December 1992 in Paul Keating, ‘Redfern ParkSpeech’ (2001) 5(11) ILB 9, where he talked of ATSIC ‘emerging from the vision of Indigenousself-determination and self-management’.

43 Executive Summary, above n41 at 1. 44 Id at 2. 45 Ibid.46 Ibid.


status of Indigenous people apparently does not connote any retained or inherentpower and authority. Most recently the Howard Government has announced itsintention to abolish the Aboriginal and Torres Strait Islander Commission (ATSIC)in the following terms:

[w]e believe very strongly that the experiment in separate representation, electedrepresentation, for indigenous people has been a failure. We will not replaceATSIC with an alternative body. We will appoint a group of distinguishedindigenous people to advise the Government on a purely advisory basis in relationto aboriginal affairs. Programmes will be mainstreamed, but arrangements will beestablished to ensure that there is a major policy role for the Minister forIndigenous Affairs.47

Herein lies a gulf between the Government and many of the most prominentvoices within the Indigenous community.

C. The High Court on SovereigntyThe High Court has examined the concept of sovereignty in a number of public lawcontexts. Before moving to what the Court has said about Indigenous sovereignty,we look first at some of these other situations. One theme that emerges is theCourt’s own recognition that there are several different perspectives on the conceptand that the context in which the issue arises is an important consideration.48 Forexample, when the Australian States challenged the Commonwealth’s assertion ofsovereignty and sovereign rights over the sea, the seabed and the continental shelfin the Seas and Submerged Lands Case49 in 1975, Jacobs J described sovereigntyas ‘a concept notoriously difficult of definition’ and acknowledged the distinctionthat can be drawn between external and internal sovereignty.50 ‘Externalsovereignty’ was seen as a power and right under international law to govern a partof the globe ‘to the exclusion of nations or states or peoples occupying other partsof the globe’.51 Looked at from the outside, external sovereignty is ‘indivisiblebecause foreign sovereigns are not concerned’ with the way power is carved upwithin the borders of a nation-state.52 Internally, on the other hand, the ‘right toexercise those powers which constitute sovereignty may be divided vertically orhorizontally … within the State. There, although a sovereignty among nations may

47 Transcript of the Prime Minister the Hon John Howard MP, Joint Press Conference WithSenator Amanda Vanstone, Parliament House, Canberra, 15 April 2004: <http://www.pm.gov.au/news/interviews/Interview795.html> (24 June 2004). See Aboriginal andTorres Strait Islander Commission Amendment Bill 2004 (Cth).

48 As Barwick CJ acknowledged, sovereignty ‘is a word, the meaning of which may varyaccording to context’ (New South Wales v Commonwealth (Seas and Submerged Lands Case)(1975) 135 CLR 337 at 364). More recently, Gleeson CJ, Gaudron, Gummow and Hayne JJ ofthe High Court said that sovereignty has long been recognised as ‘a notoriously difficult conceptwhich is applied in many, very different contexts’ (Yarmirr v Commonwealth (2001) 208 CLR1 at 52–53).

49 Seas and Submerged Lands Case, ibid.50 Id at 479. His approach was quoted with approval in Yarmirr, above n48 at 53 by Gleeson CJ,

Gaudron, Gummow and Hayne JJ.51 Seas and Submerged Lands Case, above n48 at 479.52 Id at 479–480.


thus be indivisible, the internal sovereignty may be divided under the form ofgovernment which exists’.53 In other words, internal sovereignty in Australia isnecessarily divided. The Constitution divides power between the Commonwealthgovernment and the different States and territories54 and separates the powers ofthe different organs of government — the executive, the parliament and the courts.

The High Court has recognised that within the Australian system of public lawsovereignty is qualified and shared, rather than absolute, in other contexts as well.The Court has acknowledged that for much of the nation’s history, Australia’sexternal sovereignty was actually shared with the United Kingdom.55 It is difficulteven to pinpoint the precise time at which the Commonwealth fully attained itsexternal sovereignty. This was captured in a quote from a recent High Courtdecision, with its deliberately imprecise compression of historical events: ‘At orafter federation, Australia came to take its place in international affairs and itslinks with the British Empire changed and dissolved.’56 [Emphasis added.]

In the Court’s eyes, the claim to external sovereignty offshore is qualified bythe public rights of navigation and fishing and the international right of innocentpassage.57 This non-Indigenous claim to sovereignty and sovereign rights over theterritorial sea, seabed and beyond has also been evolutionary rather than static incharacter.58 It has changed significantly and several times over the last fewhundred years,59 with the common law each time moving in step.60 In themeantime, political and legal uncertainty has surrounded issues of offshoresovereignty. For example, for much of the twentieth century the States mistakenlyasserted that they had some sovereign or proprietary rights in the territorial sea.61

53 Id at 480. 54 Id at 385 (Gibbs J), 444 (Stephen J). In Mabo v Queensland (No 2) (1992) 175 CLR 1 at 67

Brennan J, with Mason CJ and McHugh J agreeing, said that the ‘sovereign powers’ to grantinterests in land, reserve it for particular purposes and extinguish native title, are vested in theState of Queensland.

55 For example, Seas and Submerged Lands Case, above n48 at 408 (Gibbs J), 443 (Stephen J),469 (Mason J). Federal Court judge Robert French has said recently that we ‘should notunderestimate how large and for how long the imperial connection loomed in Australianconstitutional jurisprudence’: French, above n3 at 72. Brad Morse writes in a similar vein of hisown country: ‘Canada was formally confirmed as a semi-independent country in 1867, withGreat Britain retaining ultimate control over all foreign affairs until the Statute of Westminster1931 and over amendments to Canada’s Constitution until 1982.’ Bradford W Morse,‘Indigenous-Settler Treaty Making in Canada’ in Marcia Langton, Maureen Tehan, Lisa Palmer& Kathryn Shain (eds), Honour Among Nations? Treaties and Agreements with IndigenousPeople (2004) at 59.

56 Yarmirr, above n48 at 58 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).57 Id at 56 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).58 Id at 103 (McHugh J): ‘The sovereignty that the coastal state exercises over the territorial sea is

also subject to the developing international law. As international law changes, so does thecontent of the sovereignty of the coastal state over its territorial sea.’

59 Including as recently as 1994 in Australia, as reflected by the ratification of the United NationsConvention on the Law of the Sea, which entered into force in Australia on 16 November 1994:1994 Australia Treaty Series No 31; 21 ILM 1261.

60 See Seas and Submerged Lands Case, above n48 at 494 (Jacobs J) and Yarmirr, above n48 at53–60 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).


Despite the confusion, Australians continued to control the offshore territory andexploit its resources.

Members of the High Court have also developed the idea of popularsovereignty. The Australian Constitution is set out in s 9 of the Commonwealth ofAustralia Constitution Act 1900, an Act of the British Parliament. When enacted,the source of the Constitution’s status as higher law was thought to derive from theBritish Parliament and not from the Australian people. In other words, theinstrument was effective because of its enactment in the United Kingdom, notbecause of its acceptance by the Australian people at the referendums heldbetween 1898 and 1900.62 Over time, understandings of the AustralianConstitution have changed, in part because of the evolution of Australianindependence.63

Today, many see the Constitution as deriving its efficacy and legitimacy fromthe Australian people. The idea of popular sovereignty is supported by s 128 of theConstitution, which provides for amendment of the Constitution by the Australianpeople voting at a referendum initiated by the federal Parliament.64

In Bistricic v Rokov65 Murphy J stated that: ‘The original authority for ourConstitution was the United Kingdom Parliament, but the existing authority is itscontinuing acceptance by the Australian people.’66 His approach anticipated laterjudicial opinion, and the idea of popular sovereignty has since gained wideracceptance among the judges of the High Court. Mason CJ, for example, stated inAustralian Capital Television Pty Ltd v Commonwealth67 that the Australia Act‘marked the end of the legal sovereignty of the Imperial Parliament and recognisedthat ultimate sovereignty resided in the Australian people’. Similarly, Deane Jargued in Theophanous v Herald & Weekly Times Ltd68 that the present legitimacyof the Constitution ‘lies exclusively in the original adoption (by referendums) andsubsequent maintenance (by acquiescence) of its provisions by the people’.69 Or,as McHugh J stated in McGinty v Western Australia,70 ‘Since the passing of theAustralia Act (UK) in 1986, notwithstanding some considerable theoretical

61 Yarmirr, above n48 at 56–57 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).62 Owen Dixon, ‘The Law and the Constitution’ (1935) 51 LQR 590 at 597 (‘It is not a supreme law

purporting to obtain its force from the direct expression of a people’s inherent authority toconstitute a government. It is a statute of the British Parliament enacted in the exercise of its legalsovereignty over the law everywhere in the King’s Dominions.’).

63 See the Statute of Westminster 1931 (UK) (as applied in Australia by the Statute of WestminsterAdoption Act 1942 (Cth)) and the Australia Acts of 1986. See generally Geoff Lindell, ‘Why isAustralia’s Constitution Binding? — The Reasons in 1900 and Now, and the Effect ofIndependence’ (1986) 16 Fed LR 29.

64 Under s 128 constitutional change cannot be initiated by popular will as such a power restsexclusively with the Commonwealth Parliament. See McGinty v Western Australia (1996) 186CLR 140 at 274-275 (Gummow J).

65 (1976) 135 CLR 552.66 Id at 566.67 (1992) 177 CLR 106 at 138.68 (1994) 182 CLR 104.69 Id at 171.70 Above n64 at 230.


difficulties, the political and legal sovereignty of Australia now resides in thepeople of Australia.’

The consequences of recognising that ultimate sovereignty in Australia lieswith the people has yet to be explored by the High Court. For example, does theconcept mean that popular sovereignty has co-existed alongside Britishsovereignty as different but, together, effective sources of ultimate authority?71 Itmight be that the advent of judicial recognition of popular sovereignty is a largelysymbolic development that has little effect on the Australian system of governmentor in the interpretation of the Constitution. After all, the idea of popularsovereignty merely grants legal recognition to what is in any event the politicalreality.

The High Court’s development of the concept of popular sovereignty does haveimplications for the related idea of Indigenous sovereignty. According to popularsovereignty Indigenous peoples, collectively and individually, are part of theconstituting force of the Australian nation. The legitimacy of the nation’ssovereignty depends upon Indigenous people’s acceptance of the Constitution, asmuch as it does the acceptance by non-Indigenous people: ‘the AustralianAborigines were, at least as a matter of legal theory, included among the peoplewho, ‘relying on the blessing of Almighty God’, agreed to unite in an indissolubleCommonwealth of Australia’.72 But can popular sovereignty be plausibly arguedas the basis to the Constitution without belatedly providing some means forsecuring that legitimation from Indigenous peoples, as first peoples with legalsystems and property rights which preceded the British assertion of sovereignty?73

Perhaps this particular form of sovereignty — the concept of popular sovereignty— can also be seen as pluralistic rather than monolithic and indivisible.

This concept of popular sovereignty is relevant for another reason. Section 128of the Constitution illustrates that Australia’s constitutional future rests in thehands of its people and their federal parliamentarians. It is possible to alter theConstitution by the process set out in s 128 to bring about a treaty, or even moreprofound changes to our public law system. Such changes might include theaspirations of Australia’s Indigenous peoples and might reflect and recognise theirown expressions of sovereignty or inherent authority. Of course, this does notmean that such reform is easy to achieve.74

The High Court has also addressed the issue of Indigenous sovereignty moredirectly. In Coe v Commonwealth,75 the appellants applied for leave to amend theirstatement of claim to assert that the Aboriginal people were a sovereign nation,

71 French, above n3 at 73 relying on the proposition to that effect made by Professor Leslie Zines.72 Mabo v Queensland (No 2), above n54 at 106 (Deane and Gaudron JJ) invoking words from the

preamble to the Commonwealth of Australia Constitution Act 1900 (Cth).73 Indigenous people appear to have played no meaningful role in the drafting of the Australian

Constitution (Frank Brennan, Securing a Bountiful Place for Aborigines and Torres StraitIslanders in a Modern, Free and Tolerant Australia (1994) at 6). This was reflected in s127 ofthe Constitution, which provided prior to its removal in 1967: ‘In reckoning the numbers of thepeople of the Commonwealth, or of a State or other part of the Commonwealth, aboriginalnatives shall not be counted’.


that Britain had wrongly asserted sovereignty over Australia and that Australia wasacquired by conquest, not settlement. In response, Gibbs J found:

it is not possible to say ... that the aboriginal people of Australia are organized asa ‘distinct political society separated from others,’ or that they have beenuniformly treated as a state ... They have no legislative, executive or judicialorgans by which sovereignty might be exercised. If such organs existed, theywould have no powers, except such as the law of the Commonwealth, or of a Stateor Territory, might confer upon them. The contention that there is in Australia anaboriginal nation exercising sovereignty, even of a limited kind, is quiteimpossible in law to maintain.76

He further stated that ‘there is no aboriginal nation, if by that expression ismeant a people organized as a separate state or exercising any degree ofsovereignty’.77 In any event, Gibbs J held that the legal premise under whichAustralia was colonised is not justiciable because ‘[i]t is fundamental to our legalsystem that the Australian colonies became British possessions by settlement andnot by conquest’.78 Jacobs J agreed that ‘disputing the validity of the Crown’sproclamations of sovereignty and sovereign possession … are not matters ofmunicipal law but of the law of nations and are not cognizable in a court exercisingjurisdiction under that sovereignty which is sought to be challenged’.79 However(jointly dissenting with Murphy J on this point), he thought that the part of thestatement of claim dealing with inherent rights to land was not based on a denialof Crown sovereignty and should be permitted to proceed. In the result, the Courtby statutory majority80 would not permit exploration beyond conceptions of theabsolute sovereignty which it said rested with the Crown.81

Thirteen years later, in Mabo v Queensland (No 2),82 the High Court confirmedthat the British acquisition of sovereignty could not be contested in domestic

74 Of the 44 referendum proposals put to the Australian people over more than a century, only eighthave been passed. For the results of the referendums, see Tony Blackshield & George Williams,Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002) at 1303–1308. For the relevance of this history to the Australian treaty process, see George Williams,‘The Treaty Debate, Bills of Rights and the Republic: Strategies and Lessons for Reform’ (2002)5 Balayi: Culture, Law and Colonialism 10.

75 Coe v Commonwealth (1979) 24 ALR 118. 76 Id at 129. 77 Id at 131. 78 Id at 129. 79 Id at 132.80 The four member Court split 2:2 on the outcome. Applying s 23 of the Judiciary Act 1903 (Cth),

the decision of Mason J at first instance to dismiss the appellant’s application for leave to amendhis statement of claim was affirmed.

81 In Coe v Commonwealth, above n75 at 128–129, Gibbs J (with whom Aickin J agreed) notedthat, in oral argument, the appellants argued for a subsidiary form of sovereignty based onAmerican jurisprudence by asking the Court to recognise the Aboriginal people of Australia asa ‘domestic dependent nation’. He rejected this, insisting that the circumstances were differentin Australia and that Aboriginal people had ‘no legislative, executive or judicial organs by whichsovereignty might be exercised’.

82 Above n54.


courts. Several judges expressed reservations about Australia being characterisedas ‘settled’ rather than conquered in light of historical facts.83 However, despiteexposing the fiction that underpins the settlement doctrine — ‘the hypothesis thatthere was no local law already in existence’84 when the British arrived — the courtleft intact that theory for how Britain acquired authority over the Australiancontinent.85 Therefore, the common law became the law of the new colony,adjusted as necessary for local circumstances.

In Mabo (No 2), the majority did acknowledge some important propositions.They held that the courts do have jurisdiction to determine the consequences of theacquisition of sovereignty.86 Secondly, the majority held that Crown sovereigntyover a territory does not necessarily mean full Crown ownership of that territory.87

Across the continent of Australia, the land rights of Indigenous peoples under theirtraditional systems of law survived the acquisition of British sovereignty. TheCrown did, however, acquire a degree of sovereign power over land, specificallythe right to create private interests in the land and extinguish them. This wasexpressed as the Crown’s ‘radical title’ to the land.88 Finally, the Court said thisrecognition of existing Indigenous land rights ‘left room for the continuedoperation of some local laws or customs among the native people’.89

Although the Court in Mabo (No 2) said Crown sovereignty could not bechallenged domestically (and the plaintiffs did not seek to do so), some importantreferences were made to the notion of Indigenous sovereignty. For example,Brennan J noted a Select Committee report to the House of Commons in 1837 thatthe state of Australian Aborigines was ‘so entirely destitute... of the rudest formsof civil polity, that their claims, whether as sovereigns or proprietors of the soil,have been utterly disregarded’.90 He also referred a number of times to the ‘change

83 Id at 33, 38–39 (Brennan J, with Mason CJ & McHugh J agreeing), 78 (Deane and Gaudron JJ).84 Id at 36 (Brennan J, with Mason CJ & McHugh J agreeing).85 Gerry Simpson is one of several commentators who have questioned the logic of this

juxtaposition: ‘The logic employed in Western Sahara [an International Court of Justicedecision on terra nullius] permitted the High Court to declare that Australia was not terra nulliusat the time of settlement, but thereby obliged the Court to reject that Australia had beenoccupied. In the absence of either a treaty (cession) or a determination that Australia was terranullius (occupation), the only method of acquisition was conquest. The Court refused toconsider this possibility and instead produced a new method of acquisition combining thesymbolism of one (occupation) with the consequences of another (conquest).’ Gerry Simpson,‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An UnresolvedJurisprudence’ (1993) 19 MULR 195 at 208.

86 Mabo, above n54 at 32 (Brennan J, with Mason CJ & McHugh J agreeing).87 Id at 51 (Brennan J, with Mason CJ and McHugh J agreeing) referring to the ‘fallacy of equating

sovereignty and beneficial ownership of land’.88 Id at 48 (Brennan J, with Mason CJ and McHugh J agreeing). ‘The concept of radical title

provides an explanation in legal theory of how the two concepts of sovereignty over land andexisting native title rights and interests co-exist. To adopt the words of Brennan J in Mabo(No 2), it explains how “[n]ative title to land survived the Crown’s acquisition of sovereignty”over a particular part of Australia.’ See Yarmirr, above n48 at 51 (Gleeson CJ, Gaudron,Gummow & Hayne JJ).

89 Mabo, above n54 at 79 (Deane and Gaudron JJ).90 Id at 40.


in sovereignty’91 that came with British colonisation, with the obvious implicationthat Indigenous sovereignty operated at least prior to 1788. Implication becameexpress statement when Brennan J referred to ‘fictions … that there was no lawbefore the arrival of the British colonists in a settled colony and that there was nosovereign law-maker in the territory of a settled colony before sovereignty wasacquired by the Crown’.92

Deane and Gaudron JJ described what others have referred to as Indigenouspolities:

Under the laws or customs of the relevant locality, particular tribes or clans were,either on their own or with others, custodians of the areas of land from which theyderived their sustenance and from which they often took their tribal names. Theirlaws or customs were elaborate and obligatory. The boundaries of their traditionallands were likely to be long-standing and defined. The special relationshipbetween a particular tribe or clan and its land was recognized by other tribes orgroups within the relevant local native system and was reflected in differences indialect over relatively short distances. In different ways and to varying degrees ofintensity, they used their homelands for all the purposes of their lives: social,ritual, economic. They identified with them in a way which transcended commonlaw notions of property or possession. …

Indeed, as a generalization, it is true to say that, where they existed, thoseestablished entitlements of the Australian Aboriginal tribes or clans in relation totraditional lands were no less clear, substantial and strong than were the interestsof the Indian tribes and bands of North America, at least in relation to those partsof their traditional hunting grounds which remained uncultivated.93

Mabo (No 2) left the ‘settlement’ theory for the acquisition of Crownsovereignty undisturbed. But traditional law and custom — an additional source oflaw in Australia that does not derive from the Crown — was newly recognised asa coherent system, governing the inherent rights and interests of Indigenous peoplewho are also citizens of the Commonwealth of Australia. Native title adjudicationhenceforth would become an ‘examination of the way in which two radicallydifferent social and legal systems intersect’.94

In 1993, the plaintiffs in Coe v Commonwealth (No 2) launched a post-Maboassertion of Indigenous sovereignty in the High Court. They argued that theWiradjuri people are a sovereign nation in the external sense and, in the alternative,that they enjoy a subsidiary or internal form of sovereignty as a ‘domestic

91 Id at 57, 59, 63 (Brennan J, with Mason CJ & McHugh J agreeing). See also the reference to ‘thechange in sovereignty at settlement’ by Gleeson CJ, Gaudron, Gummow & Hayne JJ in Ward vWestern Australia (2002) 191 ALR 1 at 55 and below n210.

92 Mabo, above n54 at 58 (Brennan J, with Mason CJ & McHugh J agreeing).93 Id at 99–100 (Deane and Gaudron JJ). For similar judicial observations in relation to ‘sea

country’, see Yarmirr, above n48 at 142 (Kirby J). See also the dissenting judgment of Gaudronand Kirby JJ in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR538 at 569.

94 Yarmirr, id at 37 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).


dependent nation, entitled to self government and full rights over their traditionallands, save only the right to alienate them to whoever they please’.95 Mason CJ,who had struck out the earlier Wiradjuri sovereignty claim at first instance in the1979 case of Coe v Commonwealth, again gave the argument short shrift. Sittingas a single judge, he acknowledged that the legal assumption of terra nullius (thenotion of land belonging to no one) had been displaced in 1992 by the recognitionof ongoing Indigenous rights to land, stating ‘what was said in Coe must be readsubject to Mabo (No 2).96 Nonetheless, he went on:

Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to theCrown resides in the Aboriginal people of Australia. The decision is equally atodds with the notion that there resides in the Aboriginal people a limited kind ofsovereignty embraced in the notion that they are ‘a domestic dependent nation’entitled to self-government and full rights (save the right of alienation) or that asa free and independent people they are entitled to any rights and interests otherthan those created or recognised by the laws of the Commonwealth, the State ofNew South Wales and the common law. Mabo (No 2) denied that the Crown’sacquisition of sovereignty over Australia can be challenged in the municipalcourts of this country. Mabo (No 2) recognised that land in the Murray Islands washeld by means of native title under the paramount sovereignty of the Crown.97

He repeated similar arguments when a defendant to criminal charges in Walkerv New South Wales98 argued that the Crown’s legal authority over Aboriginalpeople was heavily qualified:

There is nothing in the recent decision in Mabo v Queensland (No 2) to supportthe notion that the Parliaments of the Commonwealth and New South Wales lacklegislative competence to regulate or affect the rights of Aboriginal people, or thenotion that the application of Commonwealth or State laws to Aboriginal peopleis in any way subject to their acceptance, adoption, request or consent. Suchnotions amount to the contention that a new source of sovereignty resides in theAboriginal people. Indeed, Mabo (No 2) rejected that suggestion….

English criminal law did not, and Australian criminal law does not, accommodatean alternative body of law operating alongside it. There is nothing in Mabo (No2) to provide any support at all for the proposition that criminal laws of generalapplication do not apply to Aboriginal people.

In the 2001 decision of Commonwealth v Yarmirr,99 a native title claim to thesea prompted different musings on the wider implications of native titlerecognition. McHugh J re-asserted the orthodox legal position when he said thatthe ‘Aboriginal and Torres Strait Island peoples do not have any residualsovereignty over the territory of Australia or its territorial sea’.100 In his separate

95 Coe v Commonwealth (No 2) (1993) 68 ALJR 110 at 113.96 Id at 114.97 Id at 115.98 (1994) 182 CLR 45 at 48, 50. 99 Above n48 at 99.


judgment, Kirby J reflected on the proclamations and flag-planting activities ofBritish officials, stating the ‘very claims to sovereignty in the Crown, maderespectively by Captains Cook and Phillip, over the land mass of a huge continent,had a similar metaphorical quality [to the native title claimants’ assertion ofexclusive rights over ‘sea country’], excluding all other claims to sovereignty.’101

These assertions of Crown sovereignty ‘had undoubted legal consequences whichour courts uphold’102 he said. In passing, however, he noted that unlike Englishlaw, Australia’s legal system has to ‘adjust the universal conception of a singlelegal sovereignty to a new legal idea affording special recognition to the legalclaims of indigenous peoples both because their claims relate to rights and intereststhat preceded settlement and because their recognition is essential to reversepreviously uncompensated dispossession.’103

Most recently, in Members of the Yorta Yorta Aboriginal Community vVictoria,104 the High Court again explored the consequences of Britain’s assertionof sovereignty over the Australian continent for Indigenous legal systems andsocieties, and its own understandings of those legal systems and societies. Thejoint judgment of Gleeson CJ, Gummow and Hayne JJ acknowledged that nativetitle rights and interests ‘owed their origin to a normative system other than thelegal system of the new sovereign power … the body of norms or normativesystem that existed before sovereignty’.105 They said that it ‘is only if the richcomplexity of indigenous societies is denied that reference to traditional laws andcustoms as a normative system jars the ear of the listener’.106 They analysed theadvent of the British as a ‘change in sovereignty’,107 implicitly acknowledging theexistence of a prior Indigenous sovereignty. They also noted the potential forcross-cultural differences in the concept of sovereignty: ‘A search for parallelsbetween traditional law and traditional customs on the one hand and Austin’sconception of a system of laws, as a body of commands or general orders backedby threats which are issued by a sovereign or subordinate in obedience to thesovereign, may or may not be fruitful.’108

For our purposes their most significant statement in Yorta Yorta concerned theongoing operation of Indigenous legal systems after the acquisition of Britishsovereignty:

Upon the Crown acquiring sovereignty, the normative or law-making systemwhich then existed could not thereafter validly create new rights, duties orinterests. Rights or interests in land created after sovereignty and which owedtheir origin and continued existence only to a normative system other than that of

100 Ibid.101 Id at 136.102 Ibid.103 Id at 133.104 Above n93.105 Id at 550.106 Id at 551.107 Id at 550, 555.108 Id at 551.


the new sovereign power, would not and will not be given effect by the legal orderof the new sovereign.109

The joint judgment recognised there may be some alterations and developmentin traditional law and custom after 1788, but insisted ‘what the assertion ofsovereignty by the British Crown necessarily entailed was that there couldthereafter be no parallel law-making system in the territory over which it assertedsovereignty. To hold otherwise would be to deny the acquisition of sovereignty andas has been pointed out earlier, that is not permissible.’ [Emphasis added.]110 Theyreached this holding despite also requiring that an Indigenous legal system musthave ‘a continuous existence and vitality’111 since the assertion of Britishsovereignty, to give rise to the rights in land and waters recognised as ‘native title’.These three High Court judges seem to have determined that Indigenoussovereignty does not continue to exist in Australia. However, given theirrecognition that sovereignty is a fluid concept dependent on context, that(implicitly) Indigenous people were sovereign prior to colonisation, and thatIndigenous legal systems continue to operate, it is arguable that their position onIndigenous sovereignty is contradictory at best.

This section has attempted to show the spectrum of approaches to Indigenoussovereignty in Australia. Within Indigenous communities, sovereignty has beeninvoked in different ways. However, a common theme seems to be that Indigenouspeople seek to re-negotiate their place within the Australian nation-state based ontheir inherent rights and their identity as the first peoples of this continent. Whilethe Federal Government does not generally engage the language of Indigenoussovereignty, it does recognise the need to share responsibility with Indigenouspeople in the policy areas affecting them. High Court jurisprudence on Indigenoussovereignty does not seem to get us any closer to bridging the gap between thedifferent approaches to Indigenous sovereignty. To provide greater context to thesedebates regarding sovereignty, we now turn to Canadian, American and NewZealand approaches to Indigenous sovereignty.

109 Id at 552.110 Ibid.111 Id at 553.


4. Comparative Approaches to Indigenous Sovereignty

A. CanadaIn Canada, debate amongst Aboriginal people over the concept of ‘sovereignty’takes place within a broader political and intellectual context, includingdevelopments over the last 35 years in Aboriginal rights, title to land, treaty rightsand self-government.112 Again we see a diversity of voices and some strikingsimilarities to the range of views we briefly depicted earlier in relation toAustralia’s Indigenous peoples.

Taiaiake Alfred, for example, surveys recent history and concludes that inCanada ‘more than any other country, indigenous peoples have sought to transcendthe colonial myths and restore the original relationships’.113 He acknowledges thatsovereignty has its rhetorical advantages,114 but is wary of restrictiveinterpretations of what it means. Alfred insists that, at least in its statist Westernconception, it obscures the expression of ‘indigenous concepts of politicalrelations — rooted in notions of freedom, respect and autonomy’.115 He says thatthe:

challenge for indigenous peoples in building appropriate post-colonial governingsystems is to disconnect the notion of sovereignty from its western, legal rootsand to transform it. It is all too often taken for granted that what indigenouspeoples are seeking in recognition of their nationhood is at its core the same asthat which countries like Canada and the United States possess now…Until‘sovereignty’ as a concept shifts from the dominant ‘state sovereignty’ constructand comes to reflect more of the sense embodied in western notions such aspersonal sovereignty or popular sovereignty, it will remain problematic ifintegrated within indigenous political struggles.116

Dale Turner notes that many Aboriginal peoples ‘have viewed the Eurocentriclegal-political discourse’ around sovereignty with scepticism,117 although heurges Aboriginal intellectuals to engage with the discourse, quoting NativeAmerican author Robert Allen Warrior who said ‘the struggle for sovereignty isnot a struggle to be free from the influence of anything outside ourselves, but a

112 The release of the Trudeau Government’s White Paper on Aboriginal policy in 1969 is widelyregarded as a catalyst for high profile Aboriginal initiatives in the courts and in the politicalsphere.

113 Taiaiake Alfred, From Sovereignty to Freedom. Toward an Indigenous Political Discourse2000: <http://www.taiaiake.com/pdf/sfp.pdf> (29 June 2004).

114 ‘Using the sovereignty paradigm, indigenous people have made significant legal and politicalgains toward reconstructing the autonomous aspects of their individual, collective and socialidentities.’ Id at 8.

115 Id at 1.116 Id at 11–12.117 Dale A Turner, ‘This is not a Peace Pipe’: Towards An Understanding of Aboriginal

Sovereignty (D Phil Thesis, McGill University, 1997) at 189: <http://www.collectionscanada.ca/thesescanada/> (30 June 2004).


process of asserting the power we possess as communities and individuals to makedecisions that affect our lives’.118

The Royal Commission on Aboriginal Peoples, which reported to the Canadiangovernment in November 1996, heard from many Aboriginal people on the issueof sovereignty. ‘Sovereignty is difficult to define because it is intangible, it cannotbe seen or touched. It is very much inherent, an awesome power, a strong feelingor the belief of a people. What can be seen, however, is the exercise of Aboriginalpowers’ said one First Nation leader.119 Another said that as ‘an inherent humanquality, sovereignty finds its natural expression in the principle of self-determination. Self-determining peoples have the freedom to choose the pathwaysthat best express their identity, their sense of themselves and the character of theirrelations with others. Self-determination is the power of choice in action.’120 TheRoyal Commission itself said that there was a spiritual quality to many Indigenoussubmissions it received on the concept:

Sovereignty, in the words of one brief, is ‘the original freedom conferred to ourpeople by the Creator rather than a temporal power.’ As a gift from the Creator,sovereignty can neither be given nor taken away, nor can its basic terms benegotiated. This view is shared by many Aboriginal people, whose politicaltraditions are infused with a deep sense of spirituality and a sense of the inter-connectedness of all things. Such concepts as sovereignty, self-government andthe land, which for some Canadians have largely secular definitions, all retain aspiritual dimension in contemporary Aboriginal thinking.121

But the Royal Commission report noted a material basis to sovereignty claimsas well:

While Aboriginal sovereignty is inherent, it also has an historical basis in theextensive diplomatic relations between Aboriginal peoples and European powersfrom the early period of contact onward. In the eyes of many treaty peoples, thefact that the French and British Crowns concluded alliances and treaties with FirstNations demonstrates that these nations were sovereign peoples capable ofconducting international relations.122

It found that ‘while Aboriginal people use a variety of terms to describe theirfundamental rights, they are unanimous in asserting that they have an inherentright of self-determination arising from their status as distinct or sovereignpeoples. This right entitles them to determine their own governmentalarrangements and the character of their relations with other people in Canada.’123

118 Robert Warrior, Tribal Secrets: Recovering Indian Intellectual Traditions (1993) at 124; citedin id at 190.

119 Roger Jones, Councillor and Elder of the Shawanaga First Nation, quoted in Report of the RoyalCommission on Aboriginal Peoples: <http://www.ainc-inac.gc.ca/ch/rcap/sg/ch3a_e.pdf>Volume 2 — Restructuring the Relationship, Part 1, Chapter 3, Section 1.1 (29 June 2004).

120 René Tenasco, Councillor of the Kitigan Zibi Anishinabeg Council, quoted in ibid.121 Ibid.122 Ibid.


In the end the Royal Commission, while respecting different views onsovereignty, was sceptical that agreement on its meaning could be reached and wasinclined to set it to one side when resolving the practical issues of co-existence:

In extensive presentations to the Commission, treaty nation leaders said theirnations were sovereign at the time of contact and continue to be so. Such positionsare often perceived as a threat to Canada as we know it. The Commission hasconsidered the various views of sovereignty expressed to us and has found norational way to bridge the gap between those who assert and those who deny thecontinuing sovereignty of Aboriginal nations.

The Commission concludes that any detailed examination of sovereignty isultimately a distraction from the issues our mandate requires us to address.Differences in deep political beliefs are best dealt with by fashioning a mutuallysatisfactory and peaceful coexistence rather than attempting to persuade theadherents of opposing positions that their beliefs are misguided.124

Moving from Indigenous perspectives to official ones, we must begin by notingthat Canada, like Australia, possesses a written Constitution that was originallyenacted by the United Kingdom Parliament.125 Many of its legal traditions,including a Westminster system of government, also derive from that historicalconnection. However, unlike the Australian Constitution, the 1982 amendments tothe Canadian Constitution provide some protection for the interests of Indigenouspeoples.126 Section 35(1) of the Constitution Act 1982 states that ‘The existingaboriginal and treaty rights of the aboriginal peoples of Canada are herebyrecognized and affirmed’. The Aboriginal people of Canada are defined in s 35(2)to include the ‘Indian, Inuit, and Métis peoples of Canada’.

The Federal Policy Guide: Aboriginal Self-Government127 recognises the rightof self-government as a protected right under s35 of the Constitution:

Recognition of the inherent right is based on the view that the Aboriginal peoplesof Canada have the right to govern themselves in relation to matters that areinternal to their communities, integral to their unique cultures, identities,traditions, languages and institutions, and with respect to their special relationshipto their land and their resources.

However, the Federal Policy states that this right does not confer sovereigntyupon Aboriginal peoples in the external, international law sense. The Government

123 Ibid.124 Report of the Royal Commission on Aboriginal Peoples: <http://www.ainc-inac.gc.ca/ch/rcap/

sg/ch2_e.pdf> Volume 2 — Restructuring the Relationship, Part 1, Chapter 2, Section 1.3 (29June 2004).

125 The original British North America Act 1867 (Imp) was re-enacted as the Constitution Act 1867.It sits alongside the Constitution Act 1982, which includes in s35 protection of the rights ofCanada’s aboriginal peoples.

126 The Royal Proclamation of 1763 provided an earlier legal basis for recognition of Aboriginalpeople and their rights, with its acknowledgment of Indian ‘Nations’ and their lands.

127 <www.ainc-inac.gc.ca/pr/pub/sg/plcy_e.html> 4: (1 July 2003).


does not recognise the existence of independent Aboriginal nation-states. Instead,Aboriginal people remain subject to Canadian laws, although Aboriginal andCanadian laws will co-exist.128 This idea of the overarching sovereignty of thestate, within which it is possible to recognise Aboriginal self-government, isreflected most powerfully in the Nisga’a Final Agreement of 1998. The firstmodern treaty in British Columbia recognised the legislative, executive andjudicial power of the Nisga’a Nation and the responsibility of the Nisga’a LisimsGovernment for intergovernmental relations with the provincial and federalgovernments. An interesting comparison can be found in the creation in 1999 ofthe new self-governing Territory of Nunavut, where 85% of the population is Inuit,but a public model of government rather than exclusively Indigenous self-government was adopted by agreement.129

As stated in the Federal Policy, the Government’s preference is to negotiaterather than litigate self-government issues. Treaties were entered into from whenthe British arrived in North America, and since the 1970s Canada has had amodern-day treaty process for resolving issues of land, resources, service deliveryand self-government.130 Gathering Strength — Canada’s Aboriginal Action Plan,the 1998 response to the Royal Commission on Aboriginal Peoples by theCanadian Government, acknowledged the starting place for such negotiations asrecognition by government of its role in past injustices. For example, the documentstates:

The Government of Canada acknowledges the role it played in the developmentand administration of [residential] schools … To those of you who suffered thistragedy at residential schools, we are deeply sorry …The Government of Canadarecognizes that policies that sought to assimilate Aboriginal people … were notthe way to build a strong country.131

Matters subject to negotiation include adoption and child welfare, education,health, social services, policing, natural resources management and housing.

128 Id at 8. 129 The commitment to establish the territory of Nunavut was part of the Nunavut Land Claim

Agreement signed in 1993. This ‘public model of governance rather than an Inuit-exclusivegovernment structure…does not benefit from protection under section 35’ of the CanadianConstitution. John J Borrows and Leonard I Rotman, Aboriginal Legal Issues: Cases, Materials& Commentary (2nd ed, 2003) at 710.

130 Brad Morse has written that while ‘Canada went through a period of slumber in the mid-20th

Century in which it thought that treaties were only of historic interest with no place in themodern world, First Nations used the courts, the media and the political process to remindeveryone of the fallacy of those presumptions….[E]xisting Indian-Crown treaties are very muchpart of 21st Century Canada with their numbers growing and their scope expanding throughdozens and dozens of negotiation tables in all parts of our country.’ Bradford W Morse, ‘TreatyRelationships, Fiduciary Obligations and Crown Negotiators’, paper presented at the OttawaBar Association’s Annual Institute of 2003, February 2003 at 7. For an overview of what he saysare the four distinct eras of treaty-making in Canada, see Morse, above n55 at 53–64.

131 Indian and Northern Affairs Canada, Gathering Strength — Canada’s Aboriginal Action Plan:<www.ainc-inac.gc.ca/gs/chg_e.html> 3 (1 July 2003).


In 2002, the Federal Government introduced Bill C-7, the proposed FirstNations Governance Act, as part of its policy on self-government. Among otherthings, the Bill would have created new governance structures for First Nations.The Government identified several goals of the new Bill: to strengthen therelationship between First Nations governments and their citizens; to give FirstNations people a stronger voice in the way their communities are run; to make iteasier for First Nations governments to respond to the needs of their citizens; toprovide tools of good governance that can be adapted to individual bands’ customsand traditions; to make it easier for First Nations to move towards self-governmentby building capacity; to reduce the power of the Minister and the FederalGovernment over First Nations communities; and to support First Nations inbuilding stronger, healthier communities.132

Despite the claim that Bill C-7 would be a bridge to self-government,133 manyAboriginal groups argued that the Bill infringed the inherent right to self-government. According to the Assembly of First Nations (AFN), which identifiesas the national representative organisation for over 630 First Nations communitiesin Canada:

The Government of Canada has spent tens of millions of dollars on its FirstNations Governance Act … process, a process that will not build one more houseor stop one more suicide, nor will it assist First Nations in realizing their long-standing goal of creating healthy, viable and self-governing communities basedon the recognition of Aboriginal and Treaty rights. In fact, by … dictating howFirst Nations must administer to the business of their communities, it infringes onAboriginal rights as recognized in section 35 of Canada’s Constitution Act,1982.134

On 21 January 2004, the newly appointed Minister of Indian Affairs andNorthern Development, the Honourable Andy Mitchell, announced he would notreinstate the Bill back to Parliament. The Minister indicated a desire to ‘work withFirst Nations leaders and others on effective and practical ways to apply theprinciples of good governance into First Nations communities.’135 AFN

132 Minister of Indian Affairs and Northern Development, A Guide to Understanding Bill C-7, theFirst Nations Governance Act (July 2003): <www.fng-gpn.gc.ca/PDF_files/crarevju_e.pdf> 3:(17 December 2003). According to Robert Nault, then Minister of Indian Affairs and NorthernDevelopment: ‘The objectives of this new legislation are to put in place provisions that reflectcurrent realities, that would serve as an interim step towards self-government and put the poweron reserves back where it belongs — in the hands of the people’ (‘Statement by Robert D NaultMinister of Indian Affairs and Northern Development’ 19 March 2003: <www.fng-gpn.gc.ca/NR_FctFctnM19_e.html> (2 July 2003)).

133 Robert D Nault, Minister of Indian Affairs and Northern Development, News Release ProposedFirst Nations Governance Act Moves Forward 28 May 2003: <www.ainc-inac.gc.ca/nr/prs/m-a2003/2-02324_e.html> (12 June 2003).

134 Assembly of First Nations, The Assembly of First Nations’ Position on Bill C-7: The FirstNations Governance Act: <www.afn.ca/Legislation%20Info/The%20Assembly%20of%20First%20Nations%E2%80%99%20Position%20on%20Bill%20C-7.htm>(12 June 2003).

135 <http://www.ainc-inac.gc.ca/nr/prs/j-a2004/2-02462_e.html> (16 February 2004).


recognised some positive aspects to the government’s legislative agenda.However, they remain concerned about the future of Aboriginal governance as theMinister indicated an intention to proceed with Bill C-19, the proposed Fiscal andStatistical Management Act. This Bill has been rejected by AFN because ‘Alegislative package without options and without the opportunity for a full nationaldialogue make this legislation unsupportable for the majority of First Nations andthe AFN.’136 At the time of writing the Liberal Party led by incumbent PrimeMinister Paul Martin continues in power after national elections, but as a minoritygovernment. The implications of this for Aboriginal governance are unclear.

The courts in Canada have been called upon to interpret the legal significanceof both historical and modern treaties with Aboriginal peoples. They have treatedthem as sui generis agreements, and have adopted reconciliation as an interpretivetheme. For example, the Chief Justice of the Supreme Court of Canada, the RightHonourable Beverley McLachlin, recently told an Australian audience that‘Canadian jurisprudence on Aboriginal rights has emphasised the twin tasks ofrecognition and reconciliation. The goal of reconciliation requires us to abandonan all-or-nothing perspective, and to seek principled compromises based on ashared will to live together in a modern, multicultural society.’ A key concern ofCanadian jurisprudence in this area, she said, is ‘the idea of reconciling Crownsovereignty with the history of prior occupation by indigenous peoples.’137

The Canadian courts have also examined Aboriginal peoples’ right to self-government. While the Supreme Court of Canada is yet to make a finaldetermination whether this right falls under s 35(1) of the Constitution, it hasbegun to develop a legal framework for the right. In 1990 the Supreme Court saidthat in early colonial dealings Britain and France recognised Aboriginal peoples asindependent nations.138 It refrained, however, from clarifying the effect ofEuropean colonisation on their status under the common law. In 1996 in R vPamajewon,139 the Court assumed, without deciding, that if s 35 includes the right

136 Statement by National Chief Fontaine: <http://www.afn.ca/Assembly_of_First_Nations.htm>(16 February 2004).

137 The Rt Hon Beverley McLachlin, ‘Reconciling Sovereignty: Canada and Australia’s Dialogueon Aboriginal Rights’ delivered at the High Court Centenary Conference, Canberra, 10 October2003 at 2.

138 R v Sioui [1990] 1 SCR 1025. Kent McNeil has noted that in Simon v The Queen [1985] 2 SCR387 at 404 the Court denied international status to Indian treaties but that in the Sioui decisionit did say ‘that, until 1760 at least when the treaty in question was made with the Hurons ofLorette, Britain and France maintained relations with the Indian nations “very close to thosemaintained between sovereign nations.” Nonetheless, the Supreme Court in Sioui did notquestion that the British Crown’s sovereignty over that part of Canada was derived from theFrench, regardless of Indian treaties.’ Kent McNeil, ‘The Decolonization of Canada: MovingToward Recognition of Aboriginal Governments’ (1994) 7 Western Legal History 113 at 115n7. McNeil points out that many Indigenous people have found no difficulty seeing these treatiesas ‘entailing peer relations between equal sovereigns’ (at 115). See, for example, Mary EllenTurpel, ‘Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, CulturalDifferences’ (1989–1990) Canadian Human Rights Yearbook 3 at 36: ‘There is no compellingreason, according to international law, not to view treaties between Aboriginal peoples and theCrown as treaties between sovereigns, that is, as international treaties.’


to self-government, the Van der Peet test applies to determine that right. In R v Vander Peet,140 the Court held that ‘in order to be an aboriginal right an activity mustbe an element of a practice, custom or tradition integral to the distinctive cultureof the aboriginal group claiming the right’.141 In 1997, the Court again brieflydiscussed the question of self-government in Delgamuukw v British Columbia,142

but sent the issue back for re-consideration due to errors made by the judge duringthe trial. Despite the limited nature of the findings in Delgamuukw v BritishColumbia and R v Pamajewon, Patrick Macklem has argued that these casessuggest that:

the Constitution of Canada recognizes and affirms an inherent Aboriginal right ofself-government — specifically, a right to make laws in relation to customs,practices and traditions integral to the distinctive culture of the Aboriginal nationand in relation to the use of reserve lands and lands subject to Aboriginal title.143

Macklem’s conclusion is supported by the British Columbia Supreme Court’s2000 decision in Campbell v British Columbia (Attorney General).144 In that case,the Court was asked to review the constitutional validity of self-governmentprovisions in the Nisga’a Final Agreement, a modern treaty signed in 1998 by theNisga’a people, the British Columbia government and the Federal government.The Court held that self-government is a constitutionally protected right unders 35, stating that ‘the assertion of Crown sovereignty and the ability of the Crownto legislate in relation to lands held by Aboriginal groups does not lead to theconclusion that powers of self-government held by those groups wereeliminated’.145 The Court also found that ‘after the assertion of sovereignty by theBritish Crown … the right of aboriginal people to govern themselves wasdiminished, it was not extinguished’,146 and that ‘a right to self-government akinto a legislative power to make laws, survived as one of the unwritten “underlyingvalues” of the Constitution outside of the powers distributed to Parliament and thelegislatures in 1867’.147

In Campbell, the Court did not view the right of self-government as an absoluteright. The Court made it clear that the right exists today within a framework of theCrown’s sovereignty, including the Canadian Constitution. Within that framework,the Nisga’a government’s legislative power and authority is limited to specific

139 R v Jones (sub nom R v Pamajewon) [1996] 2 SCR 821 at [24].140 [1996] 2 SCR 507 at [46] quoted in R v Jones, id at [25].141 The Court in R v Jones (id at [27]) provided additional guidance by stating that ‘Aboriginal

rights, including any asserted right to self-government, must be looked at in light of the specificcircumstances of each case and, in particular, in light of the specific history and culture of theaboriginal group claiming the right’.

142 Delgamuukw v British Columbia [1997] 3 SCR 1010.143 Patrick Macklem, Indigenous Difference and the Constitution of Canada (2001) 174. Compare

Mitchell v MNR [2001] 1 SCR 911 (Major and Binnie JJ).144 Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333.145 Id at [124]. 146 Id at [179].147 Id at [81].


areas. Moreover: ‘In circumstances where exercise of an aboriginal right to self-government is inconsistent with the overall good of the polity, Parliament mayintervene subject only to its ability to justify such interference in a mannerconsistent with the honour of the Crown’.148

By developing this public law framework, the British Columbia SupremeCourt indicated at least some judicial acceptance of the place of Indigenous self-government within the Canadian nation. The Court worked from the notion that,although the British Crown successfully asserted sovereignty, this does notexclude self-government by the Aboriginal peoples of Canada. Thus, the treatybetween the Nisga’a, the provincial government and the federal governmentconfirmed that power and authority resides in the Nisga’a people, even thoughthere was no recognition by the Court of a new and independent Nisga’a nation-state.

B. United States of AmericaAt different times over almost two centuries, federal governments and the UnitedStates Supreme Court have in turn eroded and re-asserted the importance of tribalsovereignty. According to the Bureau of Indian Affairs in President George WBush’s current Administration, there are ‘562 federally recognized AmericanIndian Tribes and Alaska Native villages in the United States. Each possessesinherent governmental authority deriving from its original sovereignty’.149

Treaties with Indian (Native American) nations were commonplace in Americanhistory both before and after independence from the British.150 The often brutaltreatment of Indian nations and the repeated violation of treaty provisions thatoccurred across the country are well documented, but nonetheless the UnitedStates has a long history of Indian tribes maintaining a significant level of powerand authority over their own communities. Like Canada, the United States hasgiven some effect to Indigenous peoples’ right to self-government. However, theUnited States has also gone further, at least in its use of language, in expresslyrecognising the sovereignty of the Indian tribes. For example, the Department ofthe Interior’s Fiscal Year 1996 Interior Accountability Report states:

Indian self-determination is the cornerstone of the Federal relationship withsovereign tribal governments. Self-determination contracts, grants, cooperativeagreements and self-governance compact agreements between the Federalgovernment and Indian tribes and tribal organizations allow the tribes, rather thanFederal employees, to operate the Federal programs.151

148 Id at [121]. See John Borrows, ‘Sovereignty’s Alchemy: An Analysis of Delgamuukw v BritishColumbia’ (1999) 37 Osgoode Hall LJ 537 at 574.

149 Department of Interior, Fiscal Year 2003 Annual Report on Performance and Accountability(2003) at 43: <http://www.doi.gov/pfm/par2003/par03_mda_goal5.pdf> (29 June 2004).

150 On the difference between the North American and Australian approaches see Morse, above n55at 50–51: ‘One of the critical historical, political and legal elements that distinguishes the NorthAmerican experience from that of Australia is that there was a recognition from the early pointsof contact that pre-existing societies were completely sovereign’.


More recently, the Bureau of Indian Affairs released its Government-to-Government Consultation Policy152 pursuant to President Bill Clinton’s ExecutiveOrder 13175 on ‘Consultation and Coordination With Indian TribalGovernments’.153 That Policy confirms the commitment to dealing with Indiantribes on a government-to-government basis. It recognises that this government-to-government ‘relationship is not new, but has strong roots that took hold with thevery earliest contact between the American Indians and the first Europeansettlers’.154 One of the Policy’s guiding principles is that the government‘recognizes the ongoing right of Indian tribes to self-government and supportstribal sovereignty and self-determination’.155 The Policy also requires governmentto consult Indian tribes before taking any actions that have ‘substantial directeffects on one or more Indian tribes’,156 demonstrating the considerable politicaland bureaucratic recognition of Indigenous sovereignty and self-government in theUnited States.157

Analysts who focus on social and economic development on Native Americanlands, such as the influential Harvard Project on American Indian EconomicDevelopment, say that tribal self-rule or ‘sovereignty’ is a critical ingredient tosuccessful development of that kind, and that sovereignty has legal, political andcultural dimensions. Kalt and Singer, for example, say of their study on the law andeconomics of Indian self-rule:

What emerges is a picture in which tribes do exercise substantial, albeit limited,sovereignty. This sovereignty is not a set of ‘special’ rights. Rather, its roots lie inthe fact that Indian nations pre-exist the United States and their sovereignty hasbeen diminished but not terminated. Tribal sovereignty is recognized andprotected by the US Constitution, legal precedent, and treaties, as well asapplicable principles of human rights.

Tribal sovereignty is not just a legal fact; it is the life-blood of Indian nations. Thisis obviously true in the political sense: Without self-rule, tribes do not exist asdistinct political entities within the US federal system. Moreover, economicallyand culturally, sovereignty is a key lever that provides American Indian

151 Department of Interior, Fiscal Year 1996 Interior Accountability Report at 50: <www.doi.gov/pfm/acct96/entire.pdf> (8 July 2003). See also Department of Interior, Fiscal Year 2003 AnnualReport on Performance and Accountability (2003) at 43, 200: <http://www.doi.gov/pfm/par2003> (29 June 2004).

152 Bureau of Indian Affairs, Government-to-Government Consultation Policy: <www.doi.gov/oait/docs/g2gpolicy.htm> (8 July 2003).

153 Federal Register, Volume 65, Number 218, 9 November 2000.154 Bureau of Indian Affairs, Government-to-Government Consultation Policy at 1: <www.doi.gov/

oait/docs/g2gpolicy.htm> (8 July 2003).155 Id at 3.156 Id at 2. Another indication of the Federal Government’s support of Indian sovereignty is the

Office of Self-Governance, which administers Tribal Self-Governance in relation to Bureau ofIndian Affairs programs. See Office of Self-Governance, <www.doi.gov/oait/osgwww> (8 July2003).

157 See Joseph William Singer, ‘Canons of Conquest: The Supreme Court’s Attack on TribalSovereignty’ (2003) 37 New Eng LR 641 at 648.


communities with institutions and practices that can protect and promote theircitizens’ interests and wellbeing. Without that lever, the social, cultural, andeconomic viability of American Indian communities and, perhaps, even identitiesis untenable over the long run.158

The United States Supreme Court has recognised Indigenous sovereignty sincea trilogy of cases in the early 1800s.159 In Johnson v M’Intosh160 in 1823, MarshallCJ acknowledged that Indigenous people were sovereign prior to the assertion ofBritish sovereignty. Marshall CJ held that the British assertion of sovereigntydiminished the Indian tribes’ sovereignty, in part because their power to alienatetheir land was limited to purchases by the British Crown.161 However, the Britishassertion of sovereignty did not extinguish Indian sovereignty because the tribes‘were admitted to be the rightful occupants of the soil, with a legal as well as justclaim to retain possession of it, and to use it according to their own discretion’.162

In Cherokee Nation v Georgia163 in 1831, Marshall CJ found that the signing oftreaties was a clear recognition of the Cherokee’s statehood.164 Since in certainrespects the Indian tribes were dependent upon the federal government, he alsostated that ‘they may, more correctly, perhaps, be denominated domesticdependent nations’.165 In a third decision in 1832, Worcester v Georgia,166

Marshall CJ strongly reiterated that prior to contact the Indian tribes weresovereign nations. He stated: ‘America … was inhabited by a distinct people,divided into separate nations, independent of each other and of the rest of theworld, having institutions of their own, and governing themselves by their ownlaws’.167 Looking to international law, he found that ‘the settled doctrine of thelaw of nations is that a … weak State, in order to provide for its safety, may placeitself under the protection of one more powerful without stripping itself of the rightof government, and ceasing to be a State’.168

Chief Justice Marshall’s position on Indigenous sovereignty has been followedin subsequent decisions of the United States Supreme Court, even those whichhave otherwise eroded the constitutional position of Native American peoples. In1886 in United States v Kagama,169 Miller J recognised that the Indian tribes weredependent upon the United States: ‘From their very weakness and helplessness, so

158 Joseph P Kalt & Joseph William Singer, Myths and Realities of Tribal Sovereignty: The Lawand Economics of Indian Self-Rule (2003): <http://www.ksg.harvard.edu/hpaied/docs/Kalt-Singer%20Final%2001-04.pdf> (29 June 2004).

159 The Rehnquist Court has, however, been extensively criticised by Federal Indian scholars for itsinterpretative emasculation of Indian sovereignty. See Robert N Clinton, ‘There is no FederalSupremacy Clause for Indian Tribes’ (2002) 34 Ariz St LJ 113.

160 Johnson v M’Intosh, 21 US 543 (1823).161 Id at 586. 162 Id at 574. 163 The Cherokee Nation v Georgia, 30 US 1 (1831). 164 Id at 16. 165 Id at 17. 166 Worcester v Georgia, 31 US 515 (1832).167 Id at 542–543. 168 Id at 560–561. 169 United States v Kagama 118 US 375 (1886).


largely due to the course of dealing of the Federal Government with them and thetreaties in which it has been promised, there arises the duty of protection’.170

However, he still found that the Indian tribes ‘were, and always have been,regarded as … a separate people, with the power of regulating their internal andsocial relations, and thus far not brought under the laws of the Union or of the Statewithin whose limits they resided’.171

In 1978 in United States v Wheeler,172 writing for the Court, Stewart J outlinedthe regulatory powers of Indigenous people and accepted that ‘The powers ofIndian tribes are in general, “inherent powers of a limited sovereignty which hasnever been extinguished”.’173 He specified that, unless limited by a treaty orstatute, the Indian tribes have the power ‘to determine tribe membership … toregulate domestic relations among tribe members … and to prescribe rules for theinheritance of property’.174 However, he did treat Indian sovereignty asdiminished through ‘[t]heir incorporation within the territory of the United States,and their acceptance of its protection … By specific treaty provisions they yieldedup other sovereign powers; by statute, in the exercise of its plenary control,Congress has removed still others’.175 Hence, the sovereignty of Indian tribesexists at ‘the sufferance of Congress and is subject to complete defeasance. Butuntil Congress acts, the tribes retain their existing sovereign powers’.176 Despitethe vulnerability of Indian sovereignty to extinguishment, Stewart J found thatIndian sovereignty is an inherent right: ‘That Congress has in certain waysregulated the manner and extent of the tribal power of self-government does notmean that Congress is the source of that power … [T]ribal self-government is amatter of retained sovereignty rather than congressional grant’.177 During the pastquarter century the Rehnquist Court has ‘created a number of new federal commonlaw limitations on tribal sovereignty’,178 but the concept itself remains part of theAmerican legal landscape.

In summary, even though the Indian tribes have no specific constitutionalprotection of their right to self-government,179 there are similarities between theCanadian and American positions. While the power and authority of Indigenouspeople in both countries are not identical, governments and courts in the twonations recognise Indigenous peoples’ right to self-government. Significantly,both nations recognise this right as an inherent right not extinguished by theassertion of British sovereignty.

170 Id at 384. 171 Id at 381–382.172 United States v Wheeler 435 US 313 (1978).173 Id at 322.174 Ibid. 175 Id at 323. 176 Ibid.177 Id at 328. 178 Catherine T Struve, ‘Tribal Immunity and Tribal Courts’ (2004) 36 Ariz St LJ 137 at 146. See

also Singer, above n157.179 The United States Constitution is not, however, silent on the Indian tribes. Article 8, for

example, confers power upon Congress, among other things, ‘to regulate commerce withforeign nations, and among the several states, and with the Indian tribes’.


C. New ZealandThe New Zealand constitutional system has some important similarities as well assome significant differences from Australia. Originally a British colony, NewZealand has a Westminster system of parliamentary government in which most ofthe institutional ties to Britain were severed by 1986. However, unlike the federalsystems with written constitutions in Australia, Canada and the United States, NewZealand is a unitary system and its constitution is largely unwritten. Its unicamerallegislature enjoys considerably greater power because it is restrained neither byfederalism nor by judicial enforcement of a constitutional text. This system alsomeans that New Zealand can produce very strong executive governments,although the 1993 adoption of mixed-member proportional representation can nowtemper executive dominance.180

The legal relationship between the Crown and Indigenous people in NewZealand provides an interesting comparison with Australia. New Zealanders neverlaboured under the fiction of terra nullius. After some debate in the 1830s, theColonial Office instructed the would-be first Governor of New Zealand to enterinto a treaty with the Maori. The Treaty of Waitangi, signed by over 500 chiefsover an eight-month period from February to September 1840, deals withfundamental issues of government authority, property rights and the application ofBritish law. Subsequently, New Zealand built a system of land titling based on theassumption of original Maori ownership, while the Australian system waspremised on the non-existence of Indigenous rights to land.

Yet the contrast between the nations is not as stark as this difference mightsuggest. While New Zealand was never presumed to be terra nullius, early judicialthinking revealed the same cross-cultural inability to recognise a different but validform of governance and society. In the 1879 decision in Wi Parata v The Bishop ofWellington,181 Prendergast CJ found the Treaty of Waitangi to be a legal nullitybecause ‘no body politic existed capable of making a cession of sovereignty’. Inofficial circles, that conclusion consigned the Treaty to near-irrelevance for almosta century. In addition, it was eleven years after the Australian High Court decisionin Mabo (No 2) that New Zealand’s highest domestic court unequivocally affirmedthe basic principle that jurisdiction and property rights are separate issues and that,at common law, customary property rights survived the Crown’s assertion ofsovereignty.182

The Treaty of Waitangi warrants closer attention. There are two versions of theTreaty, one in English and one in Maori, both of which contain three sections. Bothversions are official, recognised statements of the Treaty’s terms. A third version,which translates the Maori text back into English, is also treated with authority and

180 See Matthew Palmer & Geoffrey Palmer, Bridled Power: New Zealand’s Constitution andGovernment (4th ed, 2004) 22-38.

181 (1877) 3 NZ Jur (NS) SC 72.182 Ngati Apa v Attorney-General (NZ) (NZ Court of Appeal, Elias CJ, Gault P, Keith, Tipping and

Anderson JJ, CA173/01, 19 June 2003).


is ‘commonly used in the Courts’.183 That third version illustrates how, from thetime of its signing, different views have existed on what the Treaty says aboutsovereignty. The English version provides that Maori yielded to the Crownabsolute sovereignty without reservation, with the Maori guaranteed undisturbedpossession of their lands and estates, forests, fisheries and other properties (subjectto the sole right of purchase by the Crown). On the other hand, the Maori text,translated back into English, grants the Crown the power of government(kawanatanga) in the context of Crown protection for the unqualified exercise ofMaori chieftainship (rangatiratanga) over their lands, villages and all theirtreasures (subject to the Crown’s sole right of purchase). Given this discrepancy,debates exist regarding whether the Maori chiefs handed over absolutesovereignty, agreed to share it, deliberately withheld it, or granted some lesserdegree of authority while holding onto the power of self-government. This debateabout what the treaty actually says appears likely to continue.184

New Zealand governments have tended not to refer directly to the sovereigntyof Indigenous people. While the current Government of Prime Minister HelenClark has stated its commitment to ‘upholding and promoting the role of the Treatyin contemporary New Zealand’,185 the government uses the language of self-determination. Te Puni Kokiri (Ministry of Maori Development) is the branch ofgovernment with an exclusively Maori focus. Its current Strategic Plan states that‘in order to make self-determination a reality, cultural development must underpinall other forms of development …. This work concentrates on helping to buildcapacity of Maori groups and individuals in order for them to becomeeconomically and socially independent’.186 Despite no mention of Maorisovereignty, the plan indicates the government’s desire for Maori to have greaterpower and control over the matters that affect their lives. Maori lawyer andacademic Claire Charters has said that the government’s refusal to negotiate over

183 Id at [139] (Keith and Anderson JJ).184 Joe Williams, ‘Not Ceded but Redistributed’ in William Renwick (ed), Sovereignty and

Indigenous Rights. The Treaty of Waitangi in International Contexts (1991) at 190. See alsoClaire Charters, ‘Report on the Treaty of Waitangi 1840 Between Maori and the British Crown’,Background Paper for Expert Seminar on Treaties, Agreements and Other ConstructiveArrangements Between States and Indigenous Peoples, Geneva, 15–17 December 2003 at 6:<http://www.unhchr.ch/indigenous/charters-BP15.doc> (29 June 2004). Martinez notes that inCanada Indigenous parties to the so-called numbered treaties, officially regarded as ‘landsurrenders’, insist rather that these agreements fall into the same category as earlier treaties ofpeace and friendship and ‘that they did not cede either their territories or their original juridicalstatus as sovereigns’. Miguel Alfonso Martinez, ‘Study on Treaties, Agreements and OtherConstructive Arrangements Between States and Indigenous Populations’, Final Report, E/CN.4/Sub.2/1999/20, 22 June 1999 at [122]: <http://ods-dds-ny.un.org/doc/UNDOC/GEN/G99/137/73/PDF/G9913773.pdf?OpenElement> (30 June 2004).

185 Te Puni Kokiri (Ministry of Maori Development), Statement of Intent (2003) at 15:<www.tpk.govt.nz/publications/soi/eng_july03.pdf> (23 December 2003).

186 Te Puni Kokiri (Ministry of Maori Development), Strategic Plan 2001/02-2003/04 at 13:<www.tpk.govt.nz/publications/docs/SP_2001-04eng.pdf> (9 July 2003).


self-government in Treaty settlements has, however, diminished the political valueof the process from the Maori point of view.187

The New Zealand courts have engaged more directly with the question ofsovereignty. The orthodox perspective, based upon the notion of parliamentarysovereignty, was provided by Somers J in New Zealand Maori Council v Attorney-General:188

[T]he question of sovereignty in New Zealand is not in doubt. On 21 May 1840Captain Hobson proclaimed the ‘full sovereignty of the Queen over the whole ofthe North Island’ by virtue of the rights and powers ceded to the Crown by theTreaty of Waitangi, and over the South Island and Stewart Island on the groundsof discovery. … The sovereignty of the Crown was then beyond dispute and thesubsequent legislative history of New Zealand clearly evidences that. Sovereigntyin New Zealand resides in Parliament.

In 1990 in Kaihau v Inland Revenue Department,189 Hillyer J followed thisapproach in finding: ‘In my view it is abundantly clear that the New ZealandParliament has the right to enact legislation applying to all persons in NewZealand, whether they had ancestors who lived here in 1840 or whether they haveonly recently arrived in New Zealand’. Further debates on the legal andconstitutional significance of the Treaty continue to occur. In 2003 in Ngati Apa vAttorney-General (NZ),190 several of the nation’s most senior judges adopted theview that the Treaty of Waitangi was indeed about the ‘cession of sovereignty’.191

The nineteenth century position that the Treaty is ‘a simple nullity’ seems lesscertain today. The orthodox view is that a treaty between peoples has no domesticlegal effect without an express act of incorporation, usually by legislation.192

However, Sir Robin Cooke (later Lord Cooke of Thorndon in the House of Lords)has called the Treaty of Waitangi ‘simply the most important document in NewZealand’s history’193 and in 1987 hinted that it might have independent legal forcein the courts after all. More recently, in an extra-judicial setting, the current ChiefJustice, Dame Sian Elias left open the question of whether Parliament’s power andCrown sovereignty in New Zealand were ‘qualified by the Treaty’.194

There is also difference between Maori and non-Maori views on the effect ofthe Treaty of Waitangi. Joe Williams, now Chief Judge of the Maori Land Court,has said that if the Treaty ‘is truly a founding document, and was truly entered into

187 Charters, above n184 at 14.188 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 690.189 Kaihau v Inland Revenue Department [1990] 3 NZLR 344 at 345–346.190 Ngati Apa v Attorney-General (NZ), above n182.191 See Keith and Anderson JJ at [139]–[140] and Elias CJ at [15] who quoted, without

contradiction, the characterisation of the Treaty as one of cession of sovereignty by the Anglo-American Claims Tribunal. See also the trial judge’s adoption of a cession of sovereignty view,noted by Elias CJ at [7].

192 Hoani Te HeuHeu Tukino v Aotea District Maori Land Board [1941] AC 308.193 Sir Robin Cooke, ‘Introduction’ (1990) 14 NZULR 1.


in good faith as between the parties, then the Treaty itself was — is — the Law.Either orthodox (English) views of the law must change to accommodate itsexistence or it really was just a trick to pacify savages.’195

While these debates about its terms and legal status continue, the Treaty itselfexerts a strong influence on New Zealand law in many concrete ways.196 TheWaitangi Tribunal was established by statute in 1975 and its jurisdiction wasenhanced in the 1980s. It investigates Treaty breaches and makesrecommendations to the government that then has the power to implement them ornot. The government has established a process for resolving disputes over theTreaty of Waitangi by agreement, managed by its Office of Treaty Settlements.Such agreements are committed to a deed of settlement that is usually given legaleffect by legislation. Statutes have been made expressly subject to Treatyprinciples.197 Parliament instructs decision-makers to take the Treaty into account,and judges feel constrained by it in shaping the common law.198

The Treaty is not fully implemented by domestic legislation and, bycomparison with Canada, it does not enjoy constitutional protection under NewZealand’s largely unwritten Constitution. However, while the Treaty might occupya ‘legal shadowland’, half outside the law and half inside the law,199 its impact onlegislation and administration is now so widespread that it is difficult to disputethat it has at least a ‘quasi-constitutional’ operation.200

Much like the legal assertions of the Australian High Court in Coe (No 2) andYorta Yorta, discussed above, the Treaty of Waitangi (in English) supplies a‘working definition’ of Crown sovereignty. For the moment, the New Zealandcourts treat that definition as a sufficient basis upon which the apparatus of thestate can operate, without looking too closely into how convincing the story is,

194 The Rt Hon Dame Sian Elias GNZM, ‘Sovereignty in the 21st Century: Another Spin on theMerry-Go-Round’ (2003) 14(3) PLR 148 at 153. McHugh says that in 1995 the New ZealandCourt of Appeal ‘reaffirmed the orthodoxy that treaty rights, including those associated with theone concluded at Waitangi in 1840, required statutory incorporation and took effect only andsubject to that manner of recognition’. Paul McHugh, ‘What a Difference a Treaty Makes —The Pathway of Aboriginal Rights Jurisprudence in New Zealand Public Law’ (2004) 15(2) PLR87 at 91–92.

195 Williams, above n184 at 193.196 See Charters, above n184 at 6.197 According to McHugh, ‘These statutes laid the platform for legal development into the new

century. Indeed this activity was becoming so regular there was a suggestion at the time that theinsertion of such clauses was becoming a constitutional convention. In any event, this statutoryhousing of “Treaty principles” facilitated their permeation into the institutional culture of publicadministration, as Government departments audited themselves for sensitivity and compliance.’McHugh, above n194 at 91.

198 Matthew Palmer, ‘The Treaty of Waitangi in Legislation’ [2001] NZLJ 207. McHugh said that‘Treaty principles motored legal development in New Zealand during the 1990s (the first half inparticular) as claims negotiation and resolution dominated, and substantially dictated thedirection of, Crown-Maori relations.’ McHugh, above n194 at 92.

199 Palmer, id at 207.200 Ibid.


while at the same time perhaps keeping the door open to evolving understandingsof New Zealand constitutionalism. This approach explains how, in constitutionalterms, the role of the Treaty has been more about shaping the relationship betweenMaori and the Crown, or providing a framework for the ongoing negotiation of thatrelationship, than it has been about clearly defining the question of sovereignty.

These English-speaking countries with common law systems similar toAustralia — Canada, New Zealand and the United States — have taken differentapproaches to Indigenous sovereignty. Although two of them may not explicitlyrecognise Indigenous sovereignty, they all recognise the power and authority ofIndigenous people to make decisions affecting their lives. These differentapproaches provide a useful context for the current debates and concerns regardingtreaty making in Australia.

5. Some Related Objections to Treaty-Making in Australia

A. Too Late in the Day?For those opposed to a treaty or treaties in Australia, perhaps the most difficult ideato accept is that more than two hundred years later, a society can do something thatis normally thought to occur at the outset of settlement or colonisation. There is asimple factual answer to that concern: Canada took the step in the mid-1970s torecognise the capacity of its Indigenous peoples to enter into modern day treatieswith its national and provincial governments. It was a political decision by thedemocratically elected government of the day. Treaty-making has been policy andpractice in Canada for more than a generation and Morse suggests that the ‘processof treaty making is a long way from being finished’.201 Certainly there have beenissues, setbacks and problems with the process. Indeed, the same can be said ofmost political processes that address serious issues affecting the lives of ordinarypeople. However, Canadians can also point to many benefits from the recognition,from the commitment to negotiation and from the outcomes of the modern treatyera.

While Canada and Australia differ in some important respects, they share manyof the same fundamental features. Both inhabit a large continent, originallyoccupied by many separate peoples whose society and culture are livingcontemporary realities. Both are also former British colonies with a parliamentaryand common law tradition, modified by a federal structure. Both are also makingbelated attempts to come to terms with their history and to start down the pathtowards greater inclusion of Indigenous people within the nation, after theirexclusion by law and government action for many decades.

Embarking on treaty-making now would mean Australia is making ‘a latestart’. But societal values are constantly evolving. There is often a gap or lagbetween the values espoused by a political community and the degree to which

201 Morse, above n55.


those values are given practical effect. An example is the position of the ordinaryindividual elector in Britain or Australia. It was more than 400 years ago that thefirst hint of ‘popular sovereignty’ emerged with the idea that the legitimacy ofgovernment authority derived not from the divine right of a king to rule, but fromthe ‘consent of the governed’.202 This idea, that the government continues to enjoylegitimate political and legal authority because in some way the people consent tothat authority, came to dominate English theories of government. It took hundredsof years for the institutions and processes of government to move more into linewith that most fundamental of ideas. Major reform to give people the right to votein periodic elections, to actually give concrete effect to that idea of consent, did notbegin until the 1800s. The universal franchise is really a product of the 20thCentury. In other words, it can take decades, even centuries, for a society to bringits institutions, its theory of government and its realpolitik into some kind ofgenuine alignment. The process of arguing out the terms of that political settlementis a work-in-progress inside Western liberal democracies.

As political landscapes constantly change, the concern regarding the ‘latenessin the day’ has less weight. It is true that Australia was taken without treaty orconsent. It is also true today that many Australians view that event very differentlyfrom how we once did. Times have moved on and perceptions have changed.Australia’s most basic legal assumptions have been recently revised. The HighCourt has all but explicitly recognised that, before the British arrived, sovereignauthority over the continent was exercised by the separate Indigenous societies thatoccupied it. That Court, Australia’s parliaments and its governments have allrecognised the rights Indigenous peoples had over the lands and waters theyoccupied, and that those rights survived the acquisition of sovereignty by Britain.Inevitably the recognition of these basic facts, that Indigenous societies hold landand govern their societies according to their law, strengthens calls for sovereigntyto be re-examined in order to re-evaluate how legitimate political and legalauthority comes to be exercised over this continent.

B. Obsessed by the Past?There is another common objection to re-visiting the legitimacy of Crownauthority over all the people of the Australian continent, including the Indigenouspeoples descended from its original occupiers. Some people say that a treaty isbackward-looking, travelling over old ground and that it fixes on the past when thereal problems confronting Indigenous communities are in the present and thefuture. Again, behind this objection is a frame of mind that sees sovereignty as aonce-and-for-all-issue, rather than the continuous working out of agreed principlesand values for the legitimate exercise of authority by government over people.

202 This section of the paper draws on the analysis of Paul McHugh, The Maori Magna Carta: NewZealand Law and the Treaty of Waitangi (1991).


The example of ‘popular sovereignty’ is again relevant. In the early 19thCentury, supporters of the Westminster system acknowledged that ‘consent’ hadreplaced ‘divine right’ as the source of legitimate authority. However, some wouldhave opposed electoral reform on the basis that consent was sufficiently securedby the ‘limited democracy’ of the time. To accept that compromised system as thelast word would have been to accept political institutions and realpolitikpermanently out-of-synch with the underlying theory of government. To retain forall time the political ‘settlement’ between people and government as it existed thenwould mean the theory and the practice would fall more and more out of alignmentwith each other, and popular grievance would grow amongst those locked out ofthe settlement. Women and the un-propertied would have been excluded fromparticipating in institutional politics not just then but on an ongoing basis. Theconsequences of their disenfranchisement, of this disparity between the principleof consent and the practical reality, would be continuously visited upon them.

In other words, the terms of the political ‘settlement’ in a society at a givenmoment in time (for example, at the planting of the flag at Sydney Cove byGovernor Arthur Phillip or the Federation of the nation in 1901) are not only aboutthe past, they are also about the present and the future. History shows thatexclusion from the ‘settlement’ gives rise to grievance, but political choices can bemade to address that grievance by revising the terms of the earlier settlement andbringing them into closer alignment with fundamental assumptions and values.When societies make that choice, a new and more inclusive settlement may lay thefoundations for future social and economic development.

The recognition of native title is another example of how structural and legalchange can be about both the past and the future at the same time. To clear the wayfor recognition of Indigenous rights to land, the High Court had to address pastunderstandings. In particular, it had to re-examine assumptions behind Britain’sacquisition of sovereignty. The key assumption was the idea of Australia in 1788as terra nullius — land belonging to no one. The High Court identified thediscriminatory world-view at the heart of terra nullius and said it was no longer anacceptable assumption upon which to base ownership of the Australian continent.The merits of the Court’s reasoning and the outcomes achievable within the legalparameters of Australian native title law can be debated. Nevertheless, theoutcome was that Indigenous groups who lodge a native title claim can pursuerecognition of their rights today in order to build a future for their families and thegenerations to come. To get to that point, Australia as a nation, through its highestcourt, had to return to the events of 1788 when the British asserted sovereigncontrol of the continent. Those events had to be re-examined in light ofcontemporary knowledge of the facts, and contemporary standards of politicalmorality.

Raising the objection that a treaty is backward-looking ignores the connectionbetween the current problems of Indigenous communities and the process bywhich Australia was colonised. The ‘change in sovereignty’ imposed a new set oflaws and system of governance on Aboriginal people without their consent. This


change has had devastating effects on Aboriginal communities. To adequatelyaddress the problems facing Aboriginal communities, the root of the problem mayneed to be to acknowledged. A possible first step could be recognition of the powerand authority of Indigenous peoples to enter into treaties that re-negotiate theirrelationship with the Australian government.

C. Australian Law Forbids It?In New Zealand, some of the nation’s most senior judges have shown awillingness to wrestle with the concept of Indigenous sovereignty in court and inother forums.203 In Australia, the High Court has been less inclined to explore theissue, despite occasional invitations. Asking the Court an international lawquestion of whether the Crown in Australia validly holds sovereignty over thecontinent in the external sense of the word does raise difficulties. The authority ofthe High Court is derived from the Australian Constitution. Asking the Court toquestion Crown sovereignty requires it to question it own legitimacy.204

Therefore, it is not surprising that the Court has refused to examine the question,stating it is a ‘non-justiciable’ issue for Australia’s domestic courts.

The legal position regarding internal sovereignty is less obvious. Historydemonstrates that courts can deal rationally with the idea that internally, powerand authority are shared between ‘polities’. Disputes about federalism, forexample, commonly raise questions about the internal allocation of authoritybetween the national government and the states. These are disputes where thelanguage of sovereignty is used in the courts.205 In the United States, the SupremeCourt has maintained for 170 years that Indian nations enjoy a subsidiary degreeof sovereign authority, inside the American nation-state.

When the High Court of Australia recognised the prior ownership of land byIndigenous peoples in Mabo (No 2), it raised new possibilities for the formalrecognition of Indigenous forms of governance and authority. To some extentthose questions have been pursued in the political sphere through agreement-

203 See text at nn191, 193–194.204 As Simpson puts it, ‘The one element that could not be discarded, of course, was the sovereignty

upon which the Court’s jurisdiction rested. In discussing the issue of sovereignty the Courtfollowed the Coe judgment and that in the Seas and Submerged Lands case, warning that theacquisition of sovereignty itself was an unchallengeable act of state. In other words, theexistence of Crown sovereignty over the Australian land mass was not a justiciable matter.Despite the reservations of many Aboriginal groups, this may be the only possible finding acourt in Australia can make without undermining the very basis of its jurisdiction to hear theissue.’ [Emphasis added.] Simpson, above n85 at 206.

205 See, for example, Seas and Submerged Lands Case, above n48. See also, for example, in theUnited States the following comment in the dissent of Justices Ginsburg, Stevens, Souter &Breyer in the 2000 election case of Bush v Gore, 531 US 98 (2000): ‘Federal courts defer to statehigh courts’ interpretations of their state’s own law. This principle reflects the core offederalism, on which all agree. “The Framers split the atom of sovereignty. It was the genius oftheir idea that our citizens would have two political capacities, one state and one federal, eachprotected from incursion by the other.”’


making over land, resource use and service delivery. Yet when the issue has beenput to the High Court, its response has been firm and negative:

Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to theCrown resides in the Aboriginal people of Australia. The decision is equally atodds with the notion that there resides in the Aboriginal people a limited kind ofsovereignty.206

In hastening to this answer, preserving the perceived status quo about this mostfundamental question, the Court arguably overlooked or underplayed two keyaspects of the decision in Mabo (No 2). First, the systems of traditional law andcustom survived the acquisition of Crown sovereignty, presently operating toregulate the rights enjoyed by native title holders and governing their decision-making.207 Secondly, ‘[a]lthough the question whether a territory has beenacquired by the Crown is not justiciable before municipal courts, those courts havejurisdiction to determine the consequences of an acquisition under municipallaw.’208 In other words, the High Court may abstain from dealing with argumentsabout whether the Crown’s assertion of sovereignty over Australia was legal ornot, but it can still talk about what effect that assertion of sovereignty has on theexisting systems of law within the nation.

In its more recent decision in Yorta Yorta, the Court returned to some of thesequestions. Gleeson CJ, Gummow and Hayne JJ refrained from using the word‘sovereign’ to describe the ‘normative or law-making system’ that existed beforeBritish colonisation in many places across the continent.209 However, it was thereimplicitly, for example, in their acknowledgement of the ‘change in sovereignty’in 1788.210 Despite this, the Court in Yorta Yorta closed the door even more tightlyagainst some quite logical implications from the two propositions in Mabo (No 2)set out above. They insisted that after 1788 ‘there could be no parallel law-makingsystem’.211 This assertion was sufficient to freeze the state of traditional law andcustom in its ‘ancient’ state.212

206 Coe v Commonwealth (No 2), above n95 at 115.207 See for example Native Title Act 1993 (Cth), ss251A and 251B, and Native Title (Prescribed

Bodies Corporate) Regulations 1999, reg 8(4).208 Mabo, above n54 at 32 (Brennan J, with Mason CJ & McHugh J agreeing).209 Yorta Yorta, above n93 at 552.210 Id at 555. Six judges of the High Court had already categorised British colonisation as a change

in sovereignty in the earlier native title case of Western Australia v Commonwealth (Native TitleAct Case) (1995) 183 CLR 373 at 422–423 (Mason CJ, Brennan, Deane, Toohey, Gaudron andMcHugh JJ): ‘At common law, a mere change in sovereignty over a territory does not extinguishpre-existing rights and interests in land in that territory. Although an acquiring Sovereign canextinguish such rights and interests in the course of the act of State acquiring the territory, thepresumption in the case of the Crown is that no extinguishment is intended. That presumptionis applicable by the municipal courts of this country in determining whether the acquisition ofthe several parts of Australia by the British Crown extinguished the antecedent title of theAboriginal inhabitants.’

211 Yorta Yorta, above n93 at 552 (Gleeson CJ, Gummow and Hayne JJ).


In the short term, Yorta Yorta appears to close down any judicial exploration ofa more nuanced, internal view of sovereignty. It did so only by opening up newflaws in the Court’s logic. In particular, a legal system as ‘a normative system oftraditional laws and customs’, cannot simultaneously stand still and yet exhibit‘continuous existence and vitality since sovereignty’. Legal systems simply do notwork that way: ‘the culture and laws of indigenous peoples adapt to modern waysof life and evolve in the manner that the cultures and laws of all societies do. Theydo this lest, by being frozen and completely unchangeable, they are renderedirrelevant and consequently atrophy and disappear.’213 As was said in Yorta Yortaitself, laws and customs ‘do not exist in a vacuum’, they ‘owe their … life’ to thesociety within which they operate,214 and society surely changes as it adapts tonew circumstances.215 The Court insisted, however, that ‘one of the uncontestableconsequences of the change in sovereignty’216 was that after 1788 traditional legaldevelopment ceased, remaining operative yet frozen at the same time.

The High Court has developed its own ‘working definition’ of sovereignty,and Australia’s system of public law continues to operate accordingly. Theproblem is that the formal judicial position on the relationship between Crownand Indigenous sovereignty contains logical flaws and provides, for many, anunconvincing answer to basic questions. However, the judiciary is only one armof government and questions of settlement and legitimacy continue to be agitatedin parliament and in discussion with government and in the public arena. AsLangton and Palmer said, in describing ‘the resilience of customary polities’: ‘Apeople do not desist from their political aspirations merely on the grounds ofdoctrinal denial of their existence or their capacity to engage politically withexternal entities’.217

212 At least for the purposes of its recognition by Western law. The joint judgment contains aqualification that account may need to be taken ‘of developments at least of a kind contemplatedby that traditional law and custom’ but elsewhere it is quite insistent that the only rights eligiblefor recognition are ‘those that find their origin in pre-sovereignty law and custom’. [Id at 552.]

213 Yarmirr, above n48 at 132 (Kirby J). Similarly, in 1992, Deane and Gaudron JJ pointed out:‘The traditional law or custom is not … frozen as at the moment of establishment of a Colony’:Mabo, above n54 at 110.

214 Yorta Yorta, above n93 at 553–554 (Gleeson CJ, Gummow and Hayne JJ).215 Ward v Western Australia (2002) 191 ALR 1 at 160 (Kirby J): ‘When evaluating native title

rights and interests, a court should start by accepting the pressures that existed in relation toAboriginal laws and customs to adjust and change after British sovereignty was asserted overAustralia. In my opinion, it would be a mistake to ignore the possibility of new aspects oftraditional rights and interests developing as part of Aboriginal customs not envisaged, or evenimagined, in the times preceding settlement.’

216 Yorta Yorta, above n93 at 555 (Gleeson CJ, Gummow and Hayne JJ).


6. ConclusionThere are no easy answers and few clear legal propositions that can bedetermined when addressing basic questions about Indigenous peoples andsovereignty in nations like Australia, Canada, the United States and NewZealand. So where does this uncertainty leave us? As the Chief Justice of NewZealand, Dame Sian Elias, recently suggested (when talking about changingconceptions of parliamentary sovereignty) ‘pretty much where we have alwaysbeen. But, freed from a theory that does not fit, we are better able to confrontdirectly the difficult issues thrown up at the edges of law. We can consider themon the basis of reason and principle, through the processes of democracy andunder the security of law.’218

In Australia, we can do the same. The concept of sovereignty will remain acentral part of ongoing debate about Australia’s history and future. However, itdoes not pose a roadblock to moving forward with innovative new settlements,including the idea of a treaty or treaties. Using Australia’s democratic processesand law as an anchor, the following aspects of the Australian public law systemcollectively demonstrate how issues of unfinished business can be tackled withreason and principle:

1. The acquisition of external or State sovereignty over the Australiancontinent appears to be a matter for international law. It is up toIndigenous peoples and Australian governments to make their decisions aboutwhere they go in that regard. There are limits to what can be asked of each ofour domestic public law institutions (courts, parliament and government) andit is always important to consider which questions we appropriately address towhich institutions.

2. The consequences of that acquisition of sovereignty, for the internaldistribution of authority and rights, is a matter for the domestic legal andpolitical sphere. This much is established by the High Court’s decision inMabo (No 2).

3. Whether popular sovereignty is now the intellectual underpinning toAustralian constitutionalism or not, there is one undeniable fact: the

217 Langton & Palmer, above n31 at 43. Later (at 48–49), after surveying a range of modernagreement making processes in Australia, they conclude that ‘the assertion of nationalsovereignty is contested by the assertion and exercise of Indigenous governance and customaryauthority. Indigenous forms of political legitimacy or jurisdiction compete both symbolically andpolitically with the declared nation-state sovereignty, which is often weakly exercised in theterritory of the people, especially in remote areas. Some agreements in Australia today, while nottreaties in the conventional sense of the term used in current international law, have effectedmutual recognition of the respective jurisdictions of the Indigenous and settler parties, with theexpress purpose of constituting jural, political and economic relationships based in an agreeddistribution of public and private rights in land.’

218 Elias, above n194 at 162.


Constitution can be changed by a referendum of the people. The Court canhave its say on Indigenous sovereignty (and to some extent it has, thoughmany would say without the necessary detailed justification). Despite this, s128 of the Constitution ultimately puts the terms of the Australian settlementinto the hands of its politicians and people. This shifts our focus from a legalconception of sovereignty towards a political one.219

4. Canada and New Zealand show that in countries like Australia debatesover sovereignty can go on (and given its elusive nature, they will go on)and in the meantime the choice can be made to re-negotiate or revisit thefundamental settlement between peoples. Australia can get on with tacklingunfinished business and the terms and conditions of co-existence. Sovereigntyin the statist external sense of the word need not be seen as an impediment totreaty-making in modern-day Australia.

With these principles in mind, it is possible to move forward to consider otherquestions. These might include whether a treaty or like instrument is anappropriate way of achieving reconciliation between Indigenous and otherAustralians, and, if that is the case, the form any such treaty should take. As inCanada and New Zealand, Indigenous people in Australia can continue to developtheir own conceptions of sovereignty or self-determination, while these and otherquestions are addressed. This process will include how peoples organisethemselves, how they explain themselves to the rest of the world, how theydevelop strategies for community development in the short, medium and long-term and how they work internally on developing their own systems of goodgovernance.

If Indigenous peoples in Australia do decide to go down the treaty path, theywill make their own choices about the legal and political basis upon which theywant to negotiate a fundamental agreement or agreements with the rest of theAustralian community. Australian governments also have a range of options indeciding on what basis, if any, to conclude such agreements. As political decisionsfor the would-be negotiating parties, they are beyond the scope of this article.Instead, we have sought to explain the public law context in which these choicescan be made and to explore sovereignty as an alleged constitutional impediment tothat choice being made.

The treaty debate is about political agreements which have legal consequences.What these agreements are called and how they are conceptualised are some of theissues for debate. Indigenous peoples and governments need to define forthemselves the respective bases upon which they negotiate. Treaties or likeagreements can be reached even if the parties might agree to disagree on the

219 William Jonas, ‘Recognising Aboriginal Sovereignty — Implications for the Treaty Process’(Paper presented at the ATSIC National Treaty Conference, Canberra, 27 August 2002). See<www.treatynow.org/docs/jonas.doc> (23 December 2003).


conceptual basis of their discussions.220 Indeed, the parties might decide toundertake treaty discussions by putting to one side any questions of sovereignty.221

Whether sovereignty is addressed or not, any settlements, treaties or agreementsresulting from a negotiating process can be given legal effect, in very explicit termsif necessary. On our analysis, Australian public law, and specifically the notion ofsovereignty, puts few, if any, constraints on the outcomes that can be reached. Thegreater challenge lies in the ability of Australians to imagine new paths for movingforward and in our willingness to overcome any political obstacles.

220 See also Oliver’s comments on MacCormick’s analysis of the relationship between MemberStates and the European Union at above n7. In the same passage he continues: ‘Even if bothparties to the relationship have come out and staked claims to having the last word, it may bethat the closest we can come to describing the situation accurately is to say, as MacCormick doesregarding Member States and the European Union, that from the perspective of the UK (orGermany) sovereignty (or supremacy) of Parliament (or the Constitution) is claimed, whereasfrom a European perspective supremacy of European law is taken for granted.’ See also thecomments of the Canadian Royal Commission on Aboriginal Peoples, above n124.

221 Michael Mansell has advocated a compromise solution of this kind: ‘While the past spells outthe basis of current and future entitlements, it has to be recognised that the nature of a treatyinvolves compromise. The past rights we had opens up the possibilities for our future, providesrelevant information on which to base decisions and creates a political base from which a treatycan be entered into. The past is not a yoke around our neck: it opens our minds to the possibilitiesand gives our cause a focus. This point applies equally to governments, not just Aborigines. Thecompeting claims and positions on sovereignty could be dealt with in a way that enables bothsides to maintain their high moral positions while advancing an agreement.’ Michael Mansell,‘A Treaty as a Final Settlement?’, speech delivered at Murdoch University Treaty — AdvancingReconciliation Conference, Perth, 27 June 2002: <www.treaty.murdoch.edu.au/Conference%20Papers/Michael%20Mansell.htm> (16 August 2004).